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Oceana, Inc, v. Evans

March 9, 2005

OCEANA, INC, ET AL., PLAINTIFFS,
v.
DONALD L. EVANS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiffs allege that the Secretary acted improperly in approving Amendment 13 to the Northeast Multispecies Fishery Management Plan ("FMP"), which governs groundfish fishing in the waters off New England. This most recent amendment purports to establish a detailed plan for halting overfishing of several stocks and rebuilding them to healthy, sustainable levels. Amendment 13 is being attacked from all sides, with the Trawlers Survival Fund ("TSF"), which represents several groups of fishermen, challenging the Secretary for failing to authorize enough fishing, and Conservation Law Foundation and the Natural Resources Defense Council (collectively "CLF"), challenging the Secretary for not limiting fishing enough. Similarly, plaintiff Oceana contends that Amendment 13 does not go far enough in protecting groundfish essential fish habitat ("EFH"), such as ocean bottoms vital to juvenile cod development. All of the plaintiffs also challenge various procedural aspects of the Secretary's decision-making process. These claims are based on the Magnuson-Stevens Act ("MSA"), the Administrative Procedure Act ("APA"), the National Environmental Policy Act ("NEPA"), and the Regulatory Flexibility Act ("RFA"). The Secretary is joined as defendant by intervenors TSF, the City of Portland, Maine, and the Associated Fisheries of Maine; and the Cape Cod Commercial Hook Fishermen's Association and hook fisherman Paul M. Parker, all of whom seek to uphold Amendment 13. The States of Maine and Rhode Island and the Commonwealth of Massachusetts have submitted a brief as amici curiae.

On the basis of the parties' pleadings, the hearing held on February 25, 2005, and a voluminous administrative record, the Court grants in part and denies in part plaintiffs' motions for summary judgment, and with exception of the issue of the bycatch reporting methodology and TSF's Count Seven, judgment is entered on behalf of the defendants.

BACKGROUND

I. The Magnuson-Stevens Act ("MSA")

A. Amendment 13

The statutorily-created New England Fishery Management Council ("Council"), see 16 U.S.C. § 1852(a)(1)(A), which had primary responsibility for creating Amendment 13, spent five years designing an FMP that prioritizes protecting New England groundfish*fn1 while attempting to minimize economic hardship on fishing communities that are invariably affected by fishery management actions. (A.R. 166 (Amendment 13) at C76.) Of the twenty stocks of fish (comprising twelve species, some of which are managed separately based upon geography) in the fishery ( id. at C5), most were overfished.*fn2 ( Id. at 74) The Council projected that if measures were not taken to rehabilitate stocks and end overfishing, the industry could lose up to $200 million over the next two decades as fish stocks dwindled to even more dangerously low levels. ( Id. The Council acted, therefore, in order to protect the environment, the future of the fish stocks, and the well-being of commercial and recreational fisheries. ( Id. at 74-75.)

The Council developed Amendment 13 pursuant to its authority under the Magnuson- Stevens Act of 1976, which was established to conserve and manage fishery resources, in large part through the creation of FMPs and amendments thereto. See 16 U.S.C. § 1801(b)(1); id.*fn3 § 1853(a). Although the MSA gives the Secretary ultimate authority to approve, disapprove,*fn4 or partially approve FMPs, see id. § 1854(a)(3), councils are the primary bodies charged with developing FMPs in the first instance, a process that generally involves years of research, the weighing of various alternatives, and numerous public hearings and opportunities for participation by interested parties. See, e.g., id. § 1852(i)(2). Only under exceptional circumstances, such as emergencies or where a council fails to act, may the Secretary bypass the council process and devise management measures on his own. See id. §§ 1854(c), 1855(c).

The MSA requires a council to produce FMPs that are "consistent with" ten "National Standards." Id. § 1851(a). Four of these are particularly relevant to the instant case. National Standard One requires that "Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." Id. § 1851(a)(1). National Standard Two establishes that FMPs must be based on "the best scientific information available." Id. § 1851(a)(2). National Standard Eight provides that, "consistent with the conservation requirements of this [Act] (including the prevention of overfishing and rebuilding of overfished stocks), [FMPs shall] take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities." Id. § 1851(a)(8). Finally, National Standard Nine requires that FMPs, "to the extent practicable,*fn5 (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch." Id. § 1851(a)(9).

Recognizing that "major changes were needed" to the MSA, in 1996 Congress enacted the Sustainable Fisheries Act ("SFA") in order to address "the current crisis in... groundfish stocks, a crisis for the conservation of both fish stocks and fishing families." See 142 Cong. Rec. H11418, 11440 (1996) (statement of Rep. Studds). The MSA was thereby amended to include further provisions designed to protect essential fish habitat, expedite planning for ending overfishing, minimize bycatch, and maintain viable fishing communities. See 16 U.S.C. §§ 1853(a)(7) (EFH), 1854(e)(3) (one-year deadline for FMPs to end overfishing), 1853(a)(11) (bycatch), 1854(e)(4)(A)(i) (considering needs of fishing communities in ending overfishing and rebuilding stocks); see also A.M.L. Int'l, Inc. v. Daley, 107 F. Supp. 2d 90, 94 & n.5 (D. Mass. 2000) (discussing SFA's creation, in response to "the perceived inability of fishery councils to quickly enact needed conservation measures").

B. Relevant Past Litigation

Before the parties' arguments can be considered, it is necessary to discuss the prior lawsuits that have attacked earlier amendments and frameworks*fn6 involving the New England fishery and have thereby helped to shape Amendment 13. In CLF v. Evans, two plaintiffs in the instant action -- CLF and Oceana -- challenged the framework governing the Atlantic sea scallop fishery on the grounds that it did not close certain areas that purportedly would have protected EFH and minimized bycatch. 360 F.3d 21, 27-28 (1st Cir. 2004). The First Circuit rejected plaintiffs' claim, holding, inter alia, that adverse effects on EFH and bycatch need only be minimized to the extent "practicable." Id. (quoting 16 U.S.C. §§ 1851(a)(9), 1853(a)(7), 1853(a)(11)). It also observed that that term "allow[s] for the application of agency expertise and discretion in determining how best to manage fishery resources," and under that standard, the Secretary's plan was not irrational. Id. at 28.

Further, Oceana challenged the Secretary's approval of a sea scallop framework on the grounds that it failed to adequately protect endangered sea turtles. But because the framework had been superseded by Amendment 10, the lawsuit was dismissed as moot.*fn7 See Oceana, Inc. v. Evans, 2004 U.S. Dist. LEXIS 14895, at *2, *11 (D. Mass. July 30, 2004). Similarly, a MSA challenge to the Secretary's procedures in adopting Amendment 13 was dismissed as moot in light of a superseding interim rule that corrected the purported flaws identified by plaintiff. See Associated Fisheries of Me., Inc. v. Evans, 350 F. Supp. 2d 247, 249, 256-57 (D. Me. 2004).

In American Oceans Campaign v. Daley, AOC -- as Oceana was then knownsuccessfully challenged the sufficiency of the Secretary's assessment of alternatives in promulgating FMP measures designed to protect EFH. 183 F. Supp. 2d 1, 5 (D.D.C. 2000) (" AOC "). Although the Honorable Gladys Kessler rejected plaintiff's substantive MSA challenge, the Court agreed with AOC that the Secretary had violated NEPA, 42 U.S.C. § 4321 et seq., by preparing Environmental Assessments ("EAs") that "fail[ed] to consider all relevant and feasible alternatives, and fail[ed] to fully explain the environmental impact of the proposed action and alternatives." 183 F. Supp. 2d at 20. Accordingly, the Court permanently enjoined the relevant FMP amendments until the Secretary "perform[ed] a new, thorough, and legally adequate EA or [Environmental Impact Statement ("EIS")] for each EFH Amendment." Id. at 21.

Finally, Judge Kessler also ruled against the Secretary in a challenge to Amendment 13's predecessors brought by CLF, NRDC and others. Plaintiffs contended that the Secretary had breached the MSA by failing to prevent overfishing and to minimize bycatch in New England waters. CLF v. Evans, 209 F. Supp. 2d 1, 5 (D.D.C. 2001) (" CLF I "). Given defendants' concession that they had not come into compliance with the SFA's overfishing and rebuilding provisions, the Court ruled that defendants had arbitrarily and capriciously breached their duties under the SFA and APA. Id. at 9, 10. The Court further rejected defendants' argument that immediate relief was inappropriate because of the upcoming approval of Amendment 13, which at that time was expected in 2003. Id. Finally, the Court ruled that the Secretary had breached the SFA and APA by failing to implement any new measures to report and to minimize bycatch and bycatch mortality. Id. at 13-15.

Subsequently, Judge Kessler entered a Remedial Order on May 23, 2002 that, by its own terms, expired upon promulgation of Amendment 13. CLF v. Evans, 211 F. Supp. 2d 55, 57 (D.D.C. 2002) (" CLF II "). The Order, which incorporated a settlement agreement reached by the parties, required the Secretary to adopt regulations complying with the SFA's overfishing, stock rebuilding, and bycatch provisions. The Order further required the Secretary to "provide 5% observer coverage, or higher, if necessary to provide statistically reliable data," in order to measure bycatch. Id. at 58. The Court ordered that observer coverage be expanded to 10% as of May 1, 2003, "unless [the Secretary] can establish by the most reliable and current scientific information available that such increase is not necessary." Id. On the date the 10% coverage level was to take effect, the Secretary filed a notice with the Court indicating that defendants had concluded, based on a scientific study, that a 5% level was sufficient. Federal Defendants' Notice of Administrative Action, Ex. 1 at 3, CLF v. Evans, No. 00-1134 (D.D.C. May 1, 2003). Plaintiffs objected on the grounds that the Secretary's scientific justification was insufficient because it failed to address whether the level of coverage would produce accurate estimates. Plaintiffs' Response to Federal Defendants' Notice of Administrative Action at 1-2, CLF v. Evans, No. 00-1134 (D.D.C. June 4, 2003).

The parties also entered into a Joint Stipulation in December 2001 to resolve several issues relating to the Court's ruling in AOC. Most significantly, the Secretary agreed that any future EIS would consider a "range of reasonable alternatives" for protecting EFH. (A.R. 1331 at D-01-3105-06 ¶ 6.) Among those alternatives were to be "'no action' or status quo alternatives and alternatives setting forth specific fishery management actions that can be taken by NMFS...." ( Id. The parties agreed that the Court would retain jurisdiction over the case in order to enforce and interpret the Joint Stipulation. ( Id. at D-01-3114 ¶ 24.)

In order to comply with the Secretary's statutory duties, as well as the commitments incorportated in the Remedial Order and the Joint Stipulation, Amendment 13 includes a host of measures aimed at "rebuilding overfished stocks, ending overfishing,... reducing bycatch, and minimizing the impact of the fishery on fish habitat and protected species." (A.R. 166 at C5.) The Council established formal rebuilding programs that gradually reduce fishing effort in order to rebuild most overfished stocks by 2014. ( Id. at C6.) The Council also designed special access programs ("SAPs") that allow restricted fishing in certain areas that might otherwise be offlimits. ( Id. at C7.) Amendment 13 incorporated the informal United States / Canada Resource Sharing Understanding ("US/Canada Understanding") into the New England groundfish FMP, such that certain quotas for species in the eastern Georges Bank would be set in the future by representatives of both nations. ( Id. The Council closed several areas to various types of fishing gear in order to protect EFH. ( Id. at C10.) Amendment 13 also suggested a desired level of observer coverage aboard fishing vessels in order to monitor bycatch so that it could be more accurately reported. ( Id. at 8.) The Council created a system for allocating a share of the total allowable catch (a "TAC" or quota) for certain species to "sectors"*fn8 of the industry that voluntarily organize and subject themselves to supplemental regulations. ( Id. The Amendment restructured fishers' permitted days-at-sea ("DAS") in order to enable the Secretary to more effectively control fishing effort. ( Id. at C8-9.) In designing Amendment 13, the Council also included an EIS that evaluated a host of alternatives to the measures it ultimately proposed. All in all, the Council concluded that Amendment 13 would achieve its conservation goals, including the rebuilding of overfished species, while also providing substantial economic benefits in the long term to fishing communities, even if sacrifices would be required for the short term. ( Id. at C12, 14.)

C. Plaintiffs' Claims in the Instant Lawsuit

Amendment 13 as approved by the Secretary has invited a new round of litigation. First, CLF attacks Amendment 13 for violating the MSA and the APA by failing to end overfishing immediately for those stocks that have been depleted the most severely from overfishing. Plaintiffs contend that the plain language of the MSA obliges the Secretary to take immediate action to rebuild stocks and to terminate fishing in excess of optimum yield ("OY"). (CLF Mot. at 19-25.) They further attack the Secretary's rebuilding plans as having an unacceptably low probability of success, especially given the past history of failures, in violation of this Circuit's requirement that FMPs must have at least a fifty percent probability of achieving their targets. See NRDC v. Daley, 209 F.3d 747, 754 (D.C. Cir. 2000). (CLF Mot. at 27-33.) Additionally, CLF lodges a NEPA challenge to Amendment 13's EIS for its alleged failure to analyze fully the environmental impact of the proposed measures and to consider a suitably broad range of alternatives. ( Id. at 36-44.)

Second, TSF makes essentially the opposite point from CLF. Identifying several purported procedural deficiencies in the Amendment 13 approval process, this plaintiff contends that the FMP authorizes too little fishing by implementing a plan that differs from that authorized by the Council in violation of the MSA. TSF attacks various measures that have been implemented, arguing that they contravene decisions of the Council. (TSF Mot. at 2-3.) TSF also claims that the version of Amendment 13 approved by the Secretary violates MSA National Standard Eight and the Regulatory Flexibility Act, because the implemented version has more severe economic impacts on fishing communities and is different from the version that the Council used in assessing the financial and social impacts of the proposed measures. (TSF Mot. at 13-14, 42.) TSF further challenges the validity of a regulation promulgated by the Secretary, 50 C.F.R. § 648.85(a)(2)(i)(D), on the grounds that it violates the MSA by allowing the NMFS Regional Administrator to overrule the Council in setting certain fishing quotas. (TSF Mot. at 39-41.)

Third, Oceana contends that the Amendment violates the MSA, the APA and NEPA by failing to adequately consider alternatives for protecting EFH. Plaintiff focuses on the limited range of area closure options the Council considered, arguing that Amendment 13 is deficient because the most protective alternative that was considered was no more protective of EFH than the status quo option that was in place at the time of the AOC decision. (Oceana Mot. at 28-33.) Oceana further faults the Amendment for its failure to consider designating Habitat Areas of Particular Concern ("HAPCs"), which are a subset of EFH. See 50 C.F.R. § 600.815(a)(8). (Oceana Mot. at 34-36.)

Fourth, both CLF and Oceana argue that, as Judge Kessler previously ruled in CLF I, defendants continue to ignore their MSA duty to create an FMP that adequately monitors and minimizes bycatch. Oceana focuses in particular on the Secretary's statement that he "intends" to only implement a 5% observer coverage level, notwithstanding CLF II's Remedial Order incorporating a ten percent level from May 1, 2003 forward, and an Oceana-commissioned scientific study which recommends 20% coverage as the minimum adequate level. (Oceana Mot. at 36-40; Oceana Reply at 26-32.) Oceana further attacks Amendment 13's EIS for failing to consider a sufficient range of alternatives in terms of observer coverage. (Oceana Mot. at 40-41; Oceana Reply at 32-34.) CLF challenges Amendment 13 on a more general level for its failure to adopt a coherent, standardized program for reporting bycatch. CLF contends that a few "scattered" and "isolated" references to various methods do not satisfy the MSA's bycatch reporting requirements. (CLF Mot. at 33-36; CLF Reply at 28-30.)

D. Defendant-Intervenors and Amici Curiae

Given the consequences for the New England groundfish fishery, a host of other interested parties have intervened as defendants or have submitted a brief as amici. In addition to the federal defendants, intervenors TSF, Associated Fisheries of Maine, and the City of Portland, Maine defend the Council's interpretation of the MSA's overfishing and rebuilding provisions. (TSF Opp'n at 4-12.) They also basically defend the Council's choice of fishery management measures (even as plaintiff TSF disputes several alleged modifications made by the Secretary to the Council's proposals). ( Id. at 13-20.) Their fundamental premise is that the Council successfully struck a delicate balance with respect to a complex, interdependent ecosystem with numerous species of groundfish, and this balance reasonably prevents overfishing and provides for stock rebuilding while protecting, to the extent consistent with attaining these goals, the livelihood of fishing communities. ( Id. at 12, 20-22.) They also submit that the range of management measures considered by the Council was reasonable and lawful under NEPA and the MSA. ( Id. at 23-29.)*fn9

The States of Maine and Rhode Island and the Commonwealth of Massachusetts (collectively "the States") have submitted a joint brief as amici curiae that details the adverse economic effects the jurisdictions are expected to suffer as a result of the management techniques institued by Amendment 13. (States' Br. at 5-6.) They warn that further modifications to the Amendment that could result from granting the relief sought by the conservation plaintiffs would have dire consequences for their local fishing communities. ( Id. at 5.) They argue that Amendment 13's plans to end overfishing and to rebuild stocks constitute a "delicate balance" of conservation goals, the minimization of economic harm to the fishing industry, and concerns for the safety of fishers. ( Id. at 9.) They strenuously resist what they perceive as plaintiffs' efforts to tip this balance by prioritizing conservation goals over the other valid interests recognized by the National Standards. ( Id. at 9-10.) The States also argue that the Amendment 13 EIS satisfies NEPA by considering practicable alternatives more protective than the status quo. ( Id. at 13-14.) They further submit that vacatur of Amendment 13 would be an inappropriate remedy, because it is part of "an evolving administrative response to complex and interrelated issues" that should not be rejected wholesale. ( Id. at 16.)

II. Other Relevant Statutes

A. The National Environmental Policy Act ("NEPA")

In addition to the MSA, as amended by the SFA, several other statutes are implicated by plaintiffs' claims. Chief among these is NEPA, which requires all federal agencies proposing "major Federal actions significantly affecting the quality of the human environment" to examine their environmental effects and inform the public of the environmental considerations involved in agency decisionmaking. 42 U.S.C. § 4332(2)(C). These disclosures normally take the form of an EIS. See id. Essentially a procedural statute, NEPA does not require an agency to reach a given decision in light of the information it collects and weighs. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989). Rather, the statute's purposes are to ensure that the agency considers the environmental effects of its actions and to "guarantee[] that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Id. at 349.

The heart of an EIS is its analysis of a reasonable range of alternatives to the agency's proposed action. These alternatives should be presented so as to "sharply defin[e] the issues and provid[e] a clear basis for choice." 40 C.F.R. § 1502.14. The range of options considered by the agency is "bounded by some notion of feasibility," and a "'detailed statement of alternatives' cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 (1978). Thus, courts apply a "rule of reason" in assessing whether an agency considered a sufficient range of alternatives. See Tongass Conservation Soc'y v. Cheney, 924 F.2d 1137, 1140 (D.C. Cir. 1991) (internal quotation marks and citation omitted). Moreover, "[t]he goals of an action delimit the universe of the action's reasonable alternatives." City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999) (quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991)) (internal quotation marks omitted). Thus, an agency need not consider options inconsistent with the action's purpose. Id. Courts accord "considerable deference to the agency's expertise and policy-making role" that defined the scope of the action in the first place. Id. In addition to setting forth alternatives, an EIS must also analyze an action's direct, indirect and cumulative impacts, detail the action's purpose and need, and describe the affected environment. See 40 C.F.R. § 1502.1 et seq. A court's role in evaluating a NEPA challenge is "not [to] substitute its own policy judgment for those of the agency," Tongass, 924 F.2d at 1140, but to "ensure that the agency took account of [the relevant] factors and that its decision was not arbitrary and capricious." Humane Soc'y of the U.S. v. Hodel, 840 F.2d 45, 62 (D.C. Cir. 1988).

B. The Regulatory Flexibility Act ("RFA")

While the plaintiff conservation groups invoke NEPA to support their argument, TSF looks to the RFA, which is also a procedural statute that requires, inter alia, that an agency analyze a rulemaking's effects on small entities. See 5 U.S.C. §§ 603, 604. The purpose of such an analysis, which must be made available for comment, is to ensure that agencies consider the effects of federal actions on small businesses and that agencies evaluate significant alternatives that might minimize adverse economic impacts on such businesses. Id. § 604(b). See Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 114-17 (1st Cir. 1997) ("[RFA] section 604 does not require that a [Final Regulatory Flexibility Analysis] address every alternative, but only that it address significant ones.").

C. Administrative Procedure Act ("APA")

The Court reviews the Secretary's actions pursuant to the judicial review provisions of the APA. The Court may set aside an administrative action only where it is arbitrary, capricious or otherwise unlawful. See 5 U.S.C. § 706(2)(A)-(D). See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375 (1989). Administrative actions are presumed valid and are accorded great deference; thus, the inquiry is only whether the Secretary's decisions were unreasonable, and "this court will not second guess an agency decision or question whether the decision made was the best one." C & W Fish Co., 931 F.2d at 1565. This is particularly the case when the Court is evaluating the Secretary's scientific determinations, as opposed to simple findings of fact. See Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983). Moreover, the Court will not lightly depart from regulations promulgated by an agency in order to achieve a statute's goals. See Continental Air Lines, Inc. v. Dep't of Transp., 843 F.2d 1444, 1451-52 (D.C. Cir. 1988). Thus, it is "especially appropriate for the Court to defer to the expertise and experience of those individuals and entities -- the Secretary, the Councils, and their advisors -- whom the [Mangunon-Stevens] Act charges with making difficult policy judgments and choosing appropriate conservation and management measures based on their evaluations of the relevant quantitative and qualitative factors." National Fisheries Institute v. Mosbacher, 732 F. Supp. 210, 223 (D.D.C. 1990).

In sum, although this Court undertakes a "searching and careful," Marsh, 490 U.S. at 378, examination to determine whether there is a "rational connection between the facts found and the choice made," Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962), and it will not accept a record based on "bare conclusory allegations of fact," Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997), the Court will likewise not substitute its judgment for that of the Secretary. See Marsh, 490 U.S. at 378.

LEGAL ANALYSIS

In addressing the plaintiffs' arguments, the Court has considered the administrative record, which consists of over eighty volumes of documents, including Amendment 13, which alone comprises three of these volumes and some eighteen hundred pages, as well as some four hundred pages of pleadings and the arguments of counsel. It has also, consistent with the requirements of the MSA, 16 U.S.C. § 1855(f)(4), attempted to expedite this matter so as to rule before the fishing season begins on May 1, 2005. This having been said, the Court will now turn its attention to the parties' legal arguments. First, in Section I(B), the Court will focus on CLF's claim that Amendment 13 violates the law by not properly addressing the problem of overfishing in the New England groundfish fishery. In Section I(C), TSF's procedural attacks on Amendment 13's fishery management program will be considered. In Section II, the Court will address Oceana's NEPA challenge to the range of alternatives considered by the defendants when designing measures to protect EFH. Finally, CLF's and Oceana's arguments regarding the adequacy of Amendment 13's methodology for reporting and minimizing bycatch and bycatch mortality will be discussed in Section III.

I. Overfishing

A. Background

The gravamen of CLF's claims relates to the ongoing overfishing that is occurring, especially with respect to certain species ( e.g., the Georges Bank cod) and the lack of a meaningful program for rebuilding the fishery.

As is clear under the MSA, as amended by the SFA, the chief purpose of the statute is to prevent overfishing and to achieve optimum yield on a continuing basis. 16 U.S.C. § 1851(a)(1). To accomplish this goal, the statute requires a council to prepare an FMP to "end overfishing in the fishery and to rebuild affected stocks of fish" within one year after the Secretary determines that a fishery is overfished. 16 U.S.C. § 1854(e)(3)(A). Such a plan must end overfishing as quickly as possible, "taking into account the status and biology of any overfished stocks of fish, the needs of fishing communities, recommendations by international organizations in which the United States participates, and the interaction of the overfished stock of fish within the marine ecosystem." Id. § 1854(e)(4)(A)(i).

As with all FMPs, plans to end overfishing must be consistent with the ten National Standards. CLF stresses two of these. National Standard One requires that fishery management measures prevent overfishing while providing OY on a continuing basis from each fishery. Id. § 1851(a)(1). National Standard Eight states that "Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities." Id. § 1851(a)(8). Although conservation interests must predominate, where two plans achieve similar conservation results, the alternative that minimizes hardship on fishing communities is preferred. NRDC v. Daley, 209 F.3d at 753 (quoting 50 C.F.R. § 600.345(b)(1)).

Three years ago plaintiffs challenged Amendment 13's predecessor. The Secretary conceded that the FMP he was implementing did not contain an adequate rebuilding program, and in view of this concession, Judge Kessler found that defendants had violated the MSA and the APA. CLF I, 209 F. Supp. 2d at 7-9. Defendants further acknowledged that the FMP relied on measures that were likely to fail -- for some species, there was only a 1% chance of successand the Court therefore rejected the plan as falling below the required 50% probability of success standard. Id. at 10 (citing NRDC v. Daley, 209 F.3d at 754). The Council also admitted that it did not want to comply with NEPA by compiling an EIS that adequately analyzed alternative management measures for preventing overfishing, and this motivated the administrative decision to adopt a plan that violated the MSA. Id. The Court therefore entered a Remedial Order requiring defendants to produce an FMP that established a plan for rebuilding overfished stocks. CLF II, 211 F. Supp. 2d at 58. In the AOC Joint Stipulation, defendants further committed themselves to producing a proper EIS (A.R. 1331 at D-01-3105) and a lawful FMP according to an agreed-upon timetable. ( Id. at D-01-3110.)

Amendment 13 is the product of those commitments. The Council and Secretary have now adopted a plan that includes a lengthy EIS and establishes a detailed rebuilding program that purports to have at least a 50% chance of success for each of the twelve overfished species. When developing this plan, the Council evaluated three basic approaches for returning the species to a sustainable level; each approach is pegged to an annual, species-specific fishing mortality rate, which is referred to as "F" ( i.e., the rate at which fish may be harvested by humans, whether the fish are kept or discarded). See North Carolina Fisheries Ass'n, Inc. v. Evans, 152 F. Supp. 2d 870, 872 n.1 (E.D. Va. 2001). (A.R. 166 at C117.) In the first approach, the F rate is kept constant throughout the rebuilding period, resulting in a steep drop in the level of fishing for that species in the first year the plan is in effect. ( Id. at C103.) This dramatic upfront decrease was expected to have severe economic consequences for fishing communities, leaving many fishers out of work. See 69 Fed. Reg. at 22,920. ( See also A.R. 166 at C14.)

The second and third approaches are similar in that they both reduce F rates during the course of the rebuilding effort. In the "adaptive rebuilding strategy," the rate is initially dropped to the rate that would produce the maximum sustainable yield ("Fmsy"). ( Id. at C107.) In 2009, once more data has been gathered about the species' rebuilding potential, the rate is dropped further to a rate estimated to allow the species to recover from an overfished state during the plan's remaining years. ( Id. The third approach phases in F reductions throughout the duration of the plan. Initially, fishing effort remains at a level in excess of Fmsy, but within two to five years, each species' F target reaches Fmsy, and in later years, the "phased" rate falls even further than it would under the adaptive approach in order to allow for rebuilding targets to be met according to the established timetable. Thus, the phased approach delays instituting extreme decreases in F until a later point in the rebuilding program. ( Id. at C104-05, C117.) But both approaches avoid the steep initial decline in fishing that accompanies the constant F approach, thereby enabling more fishermen to remain in business while stocks rebuild. ( Id. at C14.) These approaches are designed to better account for "[t]he complexity of the fishery and the co-occurrence of stocks of concern and stocks that are not overfished," because even lower F rates for overfished stocks, such as those produced by the constant approach, would also reduce fishers' ability to target abundant stocks in the same geographic area due to the need to avoid bycatch of the overfished stocks. 69 Fed. Reg. at 22,920. Ultimately, the Secretary adopted the phased approach for five species and the adaptive approach for seven; he did not implement the constant F model. ( Id. at C105, C110.)

In order to achieve the F targets for each year, Amendment 13 also implements a variety of direct and indirect management tools.*fn10 These include creating per-day and per-trip limits on fish by weight; instituting rolling closures of fishing areas and closing others year-round; instituting minimum fish sizes; limiting vessels' days-at-sea; creating special access programs; establishing quotas or TACs; and modifying fishing gear, such as by increasing mesh size and restricting the use of gillnets. ( Id. at C9.)

B. CLF's Claims

CLF raises several challenges pertaining to ongoing overfishing in the New England groundfish fishery. First, it faults Amendment 13 for allowing continued overfishing in violation of the MSA. Second, it contends that Amendment 13 must be rejected because the "management measures... are unlikely to limit fishing mortality to the target level." (CLF Mot. at 2.) Third, it argues that the Secretary failed to adequately assess the problem of overfishing and consider alternative solutions to the problem. ( Id. at 36.) These flaws, it insists, are violations of the MSA, the APA, and NEPA. These arguments will be considered seriatim.

1. Is It Lawful for the F Rate to Exceed Fmsy?

Plaintiffs argue that the Secretary acted unlawfully by authorizing the phased program, which temporarily allows continued overfishing for five species. They submit that the MSA requires overfishing to be ended immediately, not a few years into a rebuilding program. (CLF Mot. at 20.) In particular, plaintiffs argue that Amendment 13 violates the MSA by unlawfully authorizing fishing mortality (F) to exceed Fmsy for five groundfish stocks ( i.e., American plaice, Southern New England/Mid-Atlantic yellowtail flounder, Georges Bank cod, Cape Cod/Gulf of Maine yellowtail flounder, and white hake). 69 Fed. Reg. at 22,920-21.

a. Applicable law and technical concepts

The parties' arguments rely on a variety of technical concepts that must be explicated. Some are defined by statute, others by regulation, and others are explained in Amendment 13.

The concepts can generally be divided into two distinct, but related, groups: those that prescribe rates and those that prescribe amounts of fish that may be harvested (as measured by weight).

The only relevant terms defined by statute or regulation involve caps on the amount of fish that may be caught. As provided by National Standard One, "Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." 16 U.S.C. § 1851(a)(1). The MSA defines overfishing as "a rate or level of fishing mortality [F] that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." 16 U.S.C. § 1802(29). "Maximum sustainable yield" ("MSY") is a "theoretical concept," 50 C.F.R. § 600.310(c)(2)(i), meaning the amount that is "the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological and environmental conditions." Id. § 600.310(c)(1)(i). MSY is the absolute limit on how much fish, as defined in terms of weight, may be harvested. See A.M.L. Int'l, 107 F. Supp. 2d at 94 n.6, 99; 50 C.F.R. §§ 600.310(c), 600.310(f)(4)(ii). ( See also TSF Opp'n at 7-8 & n.6.)

Optimum yield, as used in National Standard One, is the amount of fish that:

(A) 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; (B) is prescribed as such on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor; and (C) in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery.

Id. § 1802(28). Because OY need only produce MSY "on a continuing basis," id. § 1802(29), it "is a standard that should be achieved over the long-run, not necessarily a standard that must be achieved with precision each year." Blue Water Fisherman's Ass'n v. Mineta, 122 F. Supp. 2d 150, 161 (D.D.C. 2000); accord NRDC v. NMFS, 280 F. Supp. 2d at 1016. In other words, the maximum OY possible equals MSY, but in many cases it will be set lower on account of social, economic or ecological factors. See C&W Fish Co., 931 F.2d at 1563; 50 C.F.R. § 600.310(f)(4)(ii). And assuming OY is set below MSY, if a plan provides for the amount of fish caught to exceed OY, there is no problem, so long as over time OY is obtained on average and MSY is never exceeded. 50 C.F.R. § 600.310(f)(1)(ii).

The remaining concepts deal with rates (as opposed to amounts of fish) and are defined not by statute, but in the context of Amendment 13. "Fmsy" is the rate of fishing mortality associated with actively building stocks to levels of abundance that the Secretary determines will produce MSY catch amounts over the long run. ( See A.R. 166 at C1162 (defining Fmsy as the "fishing mortality rate that would produce MSY when the stock biomass is sufficient for producing MSY on a continuing basis [ i.e., no longer overfished]").)

The Spawning Stock Biomass rate ("SSBmsy"), also called the biomass rebuilding trajectory, constitutes the rebuilding target for an overfished species. Spawning stock biomass is the "total weight of fish in a stock that sexually mature, i.e., are old enough to reproduce." (A.R. 166 at C1167.) SSBmsy is that portion of spawning stock biomass "that would produce MSY when fished at a fishing mortality rate equal to Fmsy." ( Id. at C1159.) In practice, the Secretary has moved to using biomass targets in lieu of F targets for rebuilding purposes. See North Carolina Fisheries, 152 F. Supp. 2d at 874; A.M.L., 107 F. Supp. 2d at 98. "[A] 'biomass' target is achieved by estimating the total mass of a fishery, and arriving at a suitable harvest level that allows the fishery to maintain its maximum sustainable yield.... The ideal biomass... is considered to be the biomass that provides maximum sustainable yield, or MSY, from the stock."

North Carolina Fisheries, 152 F. Supp. 2d at 873 n.2. Similarly, Bmsy is the F target rate for when the stock has been rebuilt to its long-term biomass target.

As should be clear from this discussion, the MSA and its implementing regulations establish the central importance and relative roles of the different weight caps when designing measures to address overfishing, but Congress has left the critical task of defining fishing rates to the Secretary and the Council. CLF nonetheless challenges defendants' rebuilding program by contending that defendants have violated the law by permitting the fishing mortality rate (F) to exceed Fmsy with respect to five stocks in the early years of the rebuilding trajectory.

b. Statutory construction

Plaintiffs' argument that the Secretary has violated the MSA by allowing overfishing to continue for a limited number of years on the front end for the five species managed under the "phased" approach rests on a misconstruction of the statute. CLF confuses the statutory bar on exceeding the MSY amount with a nonexistent prohibition on exceeding the Fmsy rate during a rebuilding program. In fact, the plain language of the statute makes clear that overfishing need not be ended instantaneously, and given this statutory framework, the Court cannot conclude that a phased approach that permits overfishing in the early years contravenes the MSA. Rather, so long as OY is achieved over time and rebuilding targets can be met within the statutory period, the Secretary enjoys significant latitude in designing a rebuilding program and in ending overfishing.

Where Congress has "directly spoken to the precise question at issue," the Court "must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984). Here, the statute clearly states that any rebuilding plan shall "specify a time period for ending overfishing." 16 U.S.C. § 1854(e)(4)(A). This language would be superfluous if plaintiffs' instantaneity argument that F may never exceed Fmsy during the rebuilding plan were correct. "It is, of course, a 'cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'" See United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 499 (D.C. ...


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