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Blue Ocean Institute v. Gutierrez

November 12, 2008

BLUE OCEAN INSTITUTE, ET AL., PLAINTIFFS,
v.
CARLOS M. GUTIERREZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Plaintiffs Blue Ocean Institute and Carl Safina (collectively, "Blue Ocean") bring this action against Carlos M. Gutierrez in his official capacity as the Secretary of the United States Department of Commerce (the "Secretary") and the National Marines Fisheries Service (the "NMFS") (collectively, the "Department"). Blue Ocean challenges the Department's decision denying its "Petition for Immediate Rulemaking to Protect Spawning Atlantic Bluefin Tuna in the Gulf of Mexico" ("Petition"). Specifically, Blue Ocean alleges that the Department adopted a Fishery Management Plan ("FMP") for Atlantic Tunas, 71 Fed. Reg. 58058-01 (Oct. 2, 2006) ("2006 FMP"), that is inconsistent with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1884 ("MSA"), and the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370f ("NEPA"), and violates the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA"). Before the court are the parties' cross-motions for summary judgment [## 22, 24]. Upon consideration of the motions, the oppositions thereto, and the administrative record of this case, the court concludes that Blue Ocean's motion [#22] should be DENIED and the Department's motion [#24] should be GRANTED.

I. BACKGROUND

Western Atlantic Bluefin Tunas ("Western BFTs") are a highly-migratory species ("HMS"), meaning that they move throughout the Atlantic Ocean. In light of their range, Western BFTs, like other HMS, are managed through international recommendations as well as national regulations. The International Commission for the Conservation of Atlantic Tunas ("ICCAT") is responsible for the conservation and management of Western BFTs in the Atlantic Ocean and its adjacent seas. ICCAT recommends Western BFT quotas for each member country, including the United States. The United States implements ICCAT recommendations through the Atlantic Tuna Convention Act, 16 U.S.C. §§ 971 et seq. ("ATCA"), and manages Western BFTs through the dual authority of the ATCA and the MSA. Pursuant to the MSA, the Secretary has the authority to manage HMS, including Western BFTs, which authority the Secretary has delegated to NMFS. Exercising its delegated authority, NMFS prepares FMPs, like the 2006 FMP challenged in this case, in consultation with numerous interested persons and organizations. See 16 U.S.C. § 1854(g)(1)(A).

This controversy concerns the Western BFT spawning grounds in the Gulf of Mexico. Although Western BFTs spend much of their lives in temperate waters, they return to the warm waters of the Gulf of Mexico to spawn. Since 1970, the spawning stock biomass of Western BFTs - the quantity of sexually mature Western BFTs - has decreased significantly. Accordingly, in the early 1980s, ICCAT recommended that catches of Western BFTs be reduced as near to zero as possible and that there be no directed fishery for Western BFT spawning stock in spawning areas such as the Gulf of Mexico. ICCAT continued to recommend measures to prevent further declines in Western BFT stock throughout the 1990s. And in 1998, ICCAT adopted a 20-year rebuilding program intended to rebuild Western BFT stock.

On the domestic front, the Department has adopted FMPs to manage Western BFT since 1999, see 64 Fed. Reg. 29090-01 (May 28, 1999) ("1999 FMP"), as required by the MSA, 16 U.S.C. § 1854(g)(1). The MSA requires FMPs to be consistent with ten national standards for fishery conservation and management. Id. at § 1851(a) ("National Standards").*fn1 Blue Ocean alleges that the 2006 FMP is inconsistent with National Standards One, Two, and Nine. The effect of these inconsistencies, according to Blue Ocean, is to make more precarious the already precarious condition of Western BFTs: when this suit was filed Western BFT spawning stock biomass was at its lowest recorded level in history.

In 2003, NMFS announced its intent to prepare an EIS to amend the 1999 FMP governing the management of Western BFTs. In June 2005, Blue Ocean submitted its Petition to the Secretary asking him to adopt an annual closure of a portion of the Gulf of Mexico prohibiting all pelagic longline fishing each year between the months of April and June to protect Western BFTs during their spawning season ("proposed closure"). In August 2005, the Department released a draft of the 2006 FMP. The Department then solicited public comments until March 2006. In the course of preparing the 2006 FMP, the Department considered Blue Ocean's Petition and rejected it. Specifically, the Department concluded that the proposed closure would cause a redistribution of fishing efforts resulting in increased bycatch of other HMS, loggerhead and leatherback turtles protected under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. ("ESA"), and possibly of Western BFTs, as well. Therefore, NMFS promulgated a rule preserving the status quo: like the 1999 FMP, the 2006 FMP prohibits directed fishing for Western BFTs in the Gulf but allows fishermen targeting other fish to retain a limited number of Western BFT bycatch. Displeased with the denial of its Petition, Blue Ocean filed this suit.

II. STANDARD OF REVIEW

Blue Ocean's complaint raises three MSA claims: first, that the Department has violated National Standard One because rejecting the proposed closure fails to prevent overfishing and fails to promote the rebuilding of the Western BFT population; second, that the Department has violated National Standard Two because its decision to reject the proposed closure is not based on the best scientific information available; and third, that the Department has violated National Standard Nine because rejecting the proposed closure fails to minimize bycatch and bycatch mortality. Blue Ocean also raises a fourth claim, a NEPA claim, alleging that the Department prepared an inadequate Environmental Impact Statement ("EIS") in support of its decision to reject the proposed closure.

This court reviews Blue Ocean's claims under the APA because the claims challenge the final action of an administrative agency. In conducting its review, this court shall "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 the law [(MSA or NEPA)]." 5 U.S.C. § 706(2). Considering Blue Ocean's claims that the 2006 FMP fails to comply with MSA National Standards this court's "task is not to review de novo whether the amendment complies with these standards but to determine whether the Secretary's conclusion that the standards have been satisfied is rational and supported by the record." C & W Fish Co., Inc. v. Fox, Jr., 931 F.2d 1556, 1562 (D.C. Cir. 1991); see North Carolina Fisheries Ass'n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 79 (D.D.C. 2007) ("[R]review of agency action under the MSA is especially deferential."). Similarly, in reviewing claims that the Department failed to prepare an adequate EIS as required by NEPA, "as long as the agency's decision is 'fully informed' and 'well-considered,' it is entitled to judicial deference and a reviewing court should not substitute its own policy judgment." Natural Res. Def. Council, Inc. v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988) (quoting North Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980)). The court's inquiry is confined to reviewing the administrative record. N.C. Fisheries Ass'n, 518 F. Supp. 2d at 79 (MSA) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973) ("[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.")); Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (NEPA) (citing Camp, 411 U.S. at 142).

The parties have filed cross-motions for summary judgment as to all of Blue Ocean's claims. Summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review. Stuttering Foundation of America v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007) (citing Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited in Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir. 2003)). However, this court does not apply typical summary judgment standards when reviewing a final action of an administrative agency under the APA:

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. CIV. P. 56(c). In a case involving review of a final agency action under the [APA], however, the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006).

Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas "the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." See Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985); see also Northwest Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1472 (9th Cir.1994) ("[T]his case involves review of a final agency determination under the [APA]; therefore, resolution of th[e] matter does not require fact finding on behalf of this court. Rather, the court's review is limited to the administrative record."). Stuttering Found., 498 F. Supp. 2d at 207. Accordingly, in reviewing the ...


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