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Oceana, Inc. v. Locke

July 23, 2010


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


Oceana, Inc. has sued Gary F. Locke,*fn1 in his official capacity as Secretary of the United States Department of Commerce; the National Oceanic and Atmospheric Administration ("NOAA"); and the National Marine Fisheries Service ("NMFS")*fn2 (collectively "the agency") for declaratory and injunctive relief related to the Secretary's approval of the methodology established to assess the amount and type of bycatch (i.e., fish that are harvested in a fishery but not sold or kept for personal use) for the thirteen federal fisheries in the Northeast region. Specifically, plaintiff contends that the standardized bycatch reporting methodology ("SBRM") developed by defendants violates the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), 16 U.S.C. §§ 1801-1891d, because it: 1) grants Regional Administrators discretion to avoid implementing the SBRM upon a finding that there are operational constraints that prevent its full execution; and 2) applies only to those species targeted by federal fisheries and excludes other species that are part of the bycatch. (Mot. of Pl. Oceana for Summ. J. ["Pl.'s Mot."] at 18.) Plaintiff further alleges that the agency's decision to approve the SBRM was arbitrary and capricious because the agency failed to adequately respond to scientific evidence and it ignored its own findings regarding issues of observer bias and precision. (Id. at 25.) Finally, plaintiff contends that the agency's decision to conduct an Environmental Assessment ("EA") as to the SBRM, which resulted in the issuance of a Finding of No Significant Impact ("FONSI"), rather than an Environmental Impact Statement ("EIS"), violates the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370h. (Id. at 34.) Accordingly, plaintiff asks the Court to 1) declare the SBRM and the EA/FONSI in violation of the MSA, NEPA, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706; 2) remand the SBRM and the EA/FONSI to NMFS to develop a new SBRM and NEPA analysis that complies with the Court's order; and 3) award fees, expenses, and costs.

Before the Court are the parties' cross-motions for summary judgment. Having considered the voluminous administrative record, the parties' briefs, and the applicable case law, the Court will deny plaintiff's motion for summary judgment and grant defendants' motion for summary judgment.



A.The Magnuson-Stevens Fishery Conservation and Management Act

The MSA, passed in 1976, "provides the statutory framework for the protection and management of the nation's marine fishery resources." Conservation Law Found. v. Evans, 209 F. Supp. 2d 1, 5 (D.D.C. 2001) ("CLF"); see also 16 U.S.C. § 1801(b). The Act created eight Regional Fishery Management Councils*fn3 with "the authority and responsibility to govern conservation and management of the fisheries under its geographical jurisdiction."*fn4 CLF, 209 F. Supp. 2d at 5. The Regional Councils are tasked with developing and implementing Fishery Management Plans ("FMPs") and amendments thereto. Id.; 16 U.S.C. § 1852(g)(3)(A). Each FMP and FMP amendment is then recommended to and reviewed and evaluated by NMFS and/or NOAA to determine whether it complies with the MSA*fn5 and other applicable law.*fn6 16 U.S.C. § 1854. FMPs, FMP amendments, and any necessary implementing regulations are subject to public review and comment. Id. § 1854(a)(1), (b)(1). If the Secretary finds that the plan complies with all applicable law, he or she may approve it or partially or completely disapprove it, id. § 1854(a), and, to the extent it is approved, the FMP or FMP amendment is then implemented and enforced by NMFS. Id. § 1854(c).

In 1996, Congress passed the Sustainable Fisheries Act ("SFA"), which amended the MSA to require that all FMPs include a standardized reporting methodology "to assess the amount and type of bycatch occurring in the fisher[ies]," as well as conservation and management measures that minimize bycatch and the mortality of bycatch which cannot be avoided.*fn7 16 U.S.C. § 1853(a)(11); Pub. L. No. 104-297 § 108(b), 110 Stat. 3559, 3574-75 (Oct. 11, 1996).*fn8 Following passage of the SFA, NMFS prepared guidelines, ultimately adopted as a final rule, to assist Regional Councils in the development of FMPs. 63 Fed. Reg. 24,212 (May 1, 1998), codified in relevant part at 50 C.F.R. § 600.350. The guidelines state that "[a] review and, where necessary, improvement of data collection methods, data sources, and applications of data must be initiated for each fishery to determine . . . bycatch and bycatch mortality . . . ." 50 C.F.R. § 600.350(d)(1).

B. National Environmental Policy Act

NEPA, 42 U.S.C. §§ 4321-4370f, "has twin aims" of "'plac[ing] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action'" and "ensur[ing] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 553 (1978)). The Act "d[oes] not require agencies to elevate environmental concerns over other appropriate considerations," but rather, it requires agencies to "take a 'hard look' at the environmental consequences before taking a major action." Id.; see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989) (holding NEPA does not impose "substantive environmental obligations" on agencies, but rather "prohibits uninformed-rather than unwise-agency action").


This case arises from two earlier challenges by plaintiff to the agency's approval of FMPs in the Northeast. In 2005, plaintiff filed parallel lawsuits, challenging Amendment 13 to the Northeast Multispecies FMP, Oceana, Inc. v. Evans, No. 04-811, 2005 WL 555416 (D.D.C. Mar. 9, 2005)("Oceana I"),*fn9 and Amendment 10 to the Atlantic Sea Scallop FMP, Oceana, Inc. v. Evans, 384 F. Supp. 2d 203 (D.D.C. 2005) ("Oceana II"). In both cases, this Court granted summary judgment to defendants on most of plaintiff's claims. However, in Oceana I, plaintiff argued, inter alia, that Amendment 13 did not establish an SBRM, despite endorsing an intended level of bycatch oversight, because it failed to establish a mandatory level of oversight. 2005 WL 555416, at *39. The Court agreed, noting that the Amendment "d[id] not contain a mandatory level of observer coverage"*fn10 and "d[id] not contain any new bycatch reporting methodology." Id. The Court further held that although the SBRM set forth the agency's intention to achieve a five-percent level of observer coverage, "an FMP that merely suggests a hoped-for result, as opposed to 'establish[ing]' a particular standardized methodology, does not measure up to [MSA's] requirements." Id. at *40 (quoting 16 U.S.C. § 1853(a)(11) (alteration in original)). Specifically, the Court found that the "desire" of the agency to maintain a minimum level of coverage was "ambiguous" and "optional" because the Amendment provided that the coverage level "may be subject to change if the Secretary deems it proper." Id. at *39. Further, the Court held that the agency's failure to respond to the Babcock Study commissioned by Oceana regarding the precision of discard estimates constituted disregard of the "best scientific information available" in violation of the MSA and the APA. Id. at *42; see also 16 U.S.C. § 1851(a)(2) ("[c]onservation and management measures shall be based upon the best scientific information available").

Similarly, in Oceana II, the Court held that Amendment 10 violated the MSA because it "d[id] not set forth the substance of a reporting methodology for the scallop fishery except in a vague and conclusory fashion" that gave the NMFS Regional Administrator "complete discretion" regarding the implementation of bycatch reporting methods and standards. 384 F. Supp. 2d at 232, 234; see also id. at 234 n.41 (criticizing amendment for leaving "all decisions" regarding "method for determining observer concentration" to Regional Administrator). The Court found that the Amendment did not establish any techniques or levels of accuracy and did not "target[] a specific level of observer coverage by area that would produce statistically reliable estimates of bycatch." Id. at 233. The Court also found that the agency, by remaining silent on the issue, again failed to demonstrate that it had responded adequately to the "best scientific information available" regarding bias and accuracy. Id. at 232. In both cases, the Court remanded the bycatch portions of the two amendments to the agency for further action. Id. at 256; Oceana I,2005 WL 555416, at *43.


After the issuance of Oceana I and II, NMFS set out to address the problems identified in those decisions by establishing a comprehensive Northeast SBRM that would set bycatch reporting and assessment standards for all thirteen federal fisheries in the Northeast region. See 73 Fed. Reg. 4,736, 4,737 (Jan. 28, 2008) (codified at 50 C.F.R. pt. 648) (noting that NMFS undertook to "address all Northeast Region FMPs" and that amendment "covers 13 FMPs, 39 managed species, and 14 types of fishing gear"). The Northeast Region Omnibus SBRM Amendment ("SBRM Amendment") established an SBRM comprised of seven elements, including: 1) bycatch reporting and monitoring mechanisms; 2) analytical techniques and allocation of at-sea fisheries observers; 3) a SBRM performance standard; 4) a SBRM review and reporting process; 5) framework adjustments and/or annual specification provisions; 6) a prioritization process to be used when mandated observer coverage levels cannot be implemented because of practical considerations such as budget constraints; and 7) provisions for industry-funded and observer set-aside programs. (Administrative Record ["AR] 3953-54.)

The final SBRM Amendment is a 642-page document that extensively discusses each of the above elements. (See AR 3239-80.) The Amendment was developed and finalized over a two-year period using a process, provided for in the MSA, by which Regional Councils create and approve an amendment, and they then pass it on for review and approval by NMFS. See 16 U.S.C. § 1852(h)(5) (for fisheries under its authority, Regional Council shall prepare and submit FMPs and amendments to NMFS). Here, the SBRM Amendment was approved by the Mid-Atlantic Council (AR 3027-29) and the New England Council in June 2007. (AR 3058.) NMFS then made the SBRM Amendment available for public comment for a two-month period in July 2007. (AR 3076-77.) During that two-month period, NMFS also issued a proposed rule in August to implement the SBRM Amendment and opened it for public comment until September 24, 2007. (AR 3085, 3111.) Plaintiff submitted comments on both the draft Amendment and the proposed implementation rule.*fn11 (AR 3186-200.) The Lenfest Ocean Program also submitted comments on the Amendment and the proposed rule, which consisted primarily of a report from Dr. Murdoch K. McAllister entitled "Review of the Northeast Region Standardized Bycatch Reporting Methodology" ("McAllister Report").*fn12 (AR 3120-61.) Plaintiff's comments also referenced the McAllister Report and highlighted certain issues raised therein. (AR 3188-91.)

On October 18, 2007, the Science and Research Director of the New England Fisheries Science Center ("NEFSC"), a part of NMFS, prepared an analysis of and response to the McAllister Report for NMFS Regional Administrator Patricia Kurkul. (AR 3882-85.) The NEFSC response to the McAllister Report specifically addressed Dr. McAllister's concerns as to the agency's selection of a "combined ratio method" as the bycatch estimator and the problem of potential bias in data derived from at-sea observer coverage versus fishing vessel trip reports ("FTVR"). (Id. 3882, 3883-84.) NEFSC "disagree[d]" that bias precluded the use of observer data based on its "extensive experience" with those data sets, noting that vessels would avoid fishing in a non-representative fashion because it could result in significant economic hardships for them. (Id. 3884.) Although NEFSC acknowledged that the measures of accuracy of observational data are incomplete, because the "truth" remains unknown, it found that any potential bias in the data did not undermine the overall program. (Id.) In short, although "[t]he McAllister report provide[d] a number of instances where further research can be directed," NEFSC concluded that "it d[id] not alter [its] conclusion that the SBRM is a scientifically-sound process for implementing a continuously improving process of bycatch estimation." (Id. 3885.) NEFSC also indicated that it would "provide a more detailed response to the comments and issues raised by Dr. McAllister for inclusion in the response to public comments in the preamble to the final rule." (Id.)

On October 22, 2007, Ms. Kukul sent a letter to the New England and Mid-Atlantic Councils, informing them that NMFS had approved the SBRM Amendment. (AR 3916.) On December 20, 2007, NEFSC provided a further response to the McAllister Report to Ms. Kukul for inclusion in the response to the public comments section of the final rule. (AR 3919-28; Defs.' Opp'n at 12.) NMFS promulgated the final rule implementing the SBRM Amendment on January 28, 2008. 73 Fed. Reg. 4,736 (Jan. 28, 2008). Plaintiff filed the instant action on February 25, 2008.



The appropriate standard of review of final agency decisions under the MSA is contained in the APA. NMFS final decision must be upheld unless it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 16 U.S.C. § 1855(f)(1)(B) (reviewing court may set aside challenged regulation or action based only on grounds specified in 16 U.S.C. § 706(2)(A)-(D)). "The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Arent v. Shalala, 70 F.3d 610, 616 (D.C. Cir. 1995). "Administrative actions are presumed valid and are accorded greater 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.'" Oceana II, 384 F. Supp. 2d at 211-12 (quoting C&W Fish Co. v. Fox, 931 F.2d 1556, 1565 (D.C. Cir. 1991)). The Court's only task is to "determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Balt. Gas & Elec. Co., 462 105.

"Moreover, the Court will not lightly depart from regulations promulgated by an agency in order to achieve a statute's goals." Oceana II, 384 F. Supp. 2d at 212 (citing Continental Air Lines, Inc. v. Dep't of Transp., 843 F.2d 1444, 1451-52 (D.C. Cir. 1988) ("It therefore will not do, when interpreting a statute embodying conflicting demands, for courts grandly to resort to a single 'broad purpose' of a statute and then employ a judicially idealized 'goal' to drive the interpretive process.")). Because enforcement of the MSA involves the interpretation and evaluation of highly technical scientific findings, 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 [MSA] charges with making difficult policy judgments and choosing appropriate conservation and management measures based on their evaluations of the relevant quantitative and qualitative factors." Nat'l Fisheries Inst., Inc. v. Mosbacher, 732 F. Supp. 210, 223 (D.D.C. 1990); see also Pittston Coal Group v. Sebben, 488 U.S. 105, 150 (1988) ("[A]s an interpretive question becomes more technical, the expertise of the agency charged with a statute's administration becomes greater and deferring to its construction rather than importing our own becomes more appropriate.")

Similarly, under NEPA, "[t]he role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Balt. Gas & Elec. Co., 462 97-98; see also Nevada v. Dep't of Energy, 457 F.3d 78, 87-88 (D.C. Cir. 2006) (applying APA's arbitrary and capricious standard "to review both the agency's procedural compliance with NEPA and the adequacy of an EIS"). "[O]nce an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot 'interject itself within the area of discretion of the executive as to the choice of the action to be taken.'" Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28 (1980) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) ("Neither [NEPA] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.")).


The MSA requires NMFS to "establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery." 16 U.S.C. ยง 1853(a)(11). Oceana argues that the SBRM Amendment fails to establish such a methodology because it creates a "loophole" that allows the NMFS Regional Administrator to avoid applying the minimum acceptable level of observer coverage under the SBRM in any year "in which external operational constraints would prevent NMFS from fully implementing the required at-sea observer coverage levels," but instead to consult with Regional Councils as to the appropriate allocation of resources. (AR 3274-75; Pl.'s Mot. at 19-22.) Oceana further contends that the SBRM Amendment violates the MSA because the ...

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