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Gulf Restoration Network, Inc. v. National Marine Fisheries

August 12, 2010

GULF RESTORATION NETWORK, INC., ET AL., PLAINTIFFS,
v.
NATIONAL MARINE FISHERIES, SERVICE, ET AL., DEFENDANTS.
OCEAN CONSERVANCY, PLAINTIFF,
v.
NATIONAL MARINE FISHERIES SERVICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiffs Gulf Restoration Network, Inc., Food & Water Watch, and Ocean Conservancy (collectively, "Plaintiffs") brought this action against Defendant National Marine Fisheries Services ("NMFS"), James W. Balsiger, National Oceanic and Atmospheric Administration, and Gary Locke, United States Secretary of Commerce (collectively, "Defendants"), alleging that the Fishery Management Plan for Regulating Offshore Marine Aquaculture in the Gulf of Mexico violates provisions of the Magnuson-Stevens Fishery and Conservation Management Act and the National Environmental Policy Act.

This matter is before the Court on Defendants' Motion to Dismiss [Dkt. No. 8] for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and failure to state a claim for which relief can be granted pursuant to Rule 12(b)(6). Upon consideration of the Motions, Opposition, Reply, and the entire record herein, and for the reasons stated below, NMFS' Motion to Dismiss is granted.

I. BACKGROUND

A. Statutory Background

Plaintiffs allege violations of the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), 16 U.S.C. §§ 1801 et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4337 et seq., and the Administrative Procedure Act ("APA") 5 U.S.C. § 702 et seq.

The Department of Commerce, through NMFS,*fn1 regulates the nation's marine fisheries, pursuant to the MSA. The MSA establishes eight Regional Fishery Management Councils composed of federal officials, state officials, and private parties that are appointed by the Secretary of Commerce. 16 U.S.C. § 1852. These Councils are responsible for developing fishery management plans ("FMPs" or "Plans") for fisheries in federal waters within the United States Exclusive Economic Zone ("EEZ"), id. at § 1853, which includes ocean water from three to two hundred miles offshore.

Once a Council has developed a Plan, the MSA requires that the Secretary of Commerce review it. The Secretary must determine whether the FMP comports with ten national standards provided for in the MSA, as well as "any other applicable law." Id. at §§ 1854, 1851 (setting forth national standards). Additionally, the Secretary must "immediately publish in the Federal Register a notice stating that the plan . . . is available and that written information, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the 60-day period beginning on the date the notice is published." Id. at § 1854(a)(1)(B).

The MSA then instructs that the Secretary shall "approve, disapprove, or partially approve a plan or amendment within 30 days of the end of the comment period . . . by written notice to the Council." Id. at § 1854(a)(3). The Act also contemplates a scenario where the Secretary does not approve or disapprove the FMP: "If the Secretary does not notify a Council within 30 days of the end of the comment period of the approval, disapproval, or partial approval of a plan or amendment, then such plan or amendment shall take effect as if approved." Id. In other words, if the Secretary fails to act, the FMP automatically becomes effective.

At the same time the Council submits its FMP to the Secretary, it also submits regulations for its implementation to the Secretary. Id. at § 1853(c). The Secretary then must conduct a review of the regulations which is similar to that conducted for the Plan--i.e. determine consistency with national standards, applicable law, and the FMP. Before the regulations become final, the MSA requires that the "Secretary shall notify the Council in writing of [any] inconsistencies and provide recommendations on revisions that would make the proposed regulations consistent with the fishery management plan, plan amendment, this chapter, and other applicable law." Id. at § 1854(b)(1)(B). Unlike the procedure governing adoption of the FMP, the MSA contains no provision that allows the regulations to take effect by operation of law if the Secretary takes no action. See id. at § 1854(b)

B. Factual Background

One of the eight Councils, the Gulf of Mexico Fishery Management Council ("Gulf Council"), drafted the FMP at issue in this case to authorize commercial offshore aquaculture facilities in the Gulf of Mexico's EEZ. The Gulf Council approved the FMP on January 27, 2009. Decl. of Kevin W. McCardle [Dkt. No. 9], Ex. 2 at 1.*fn2 It sets forth a plan for a regional permitting process for commercial offshore aquaculture in federal waters. Id. at 1-2. The Council submitted its proposed regulations to NMFS with its FMP on February 24, 2009. Id. at Cover. The comment period began the day the notice was published, which was June 4, 2009, and closed August 3, 2009.*fn3 Id. NMFS had 30 days, or until September 2, 2009, id., to approve, partially approve, or disapprove the FMP by written notice to the Council. 16 U.S.C. § 1854(a)(3).

Offshore aquaculture is the farming of aquatic animals in open ocean areas, most often through the use of floating or submerged net-pens or cages. McCardle Decl., Ex. 1 at 15. If the Council's FMP is implemented, an estimated five to 20 offshore aquaculture operations would be permitted over the next ten years, with an estimated annual production of up to 64 million pounds of fish. Id. at 1. The Council cites an increase in demand for protein and seafood as the justification for this proposed change to aquaculture from "commercial wild-capture fisheries [that] are being fished at or above sustainable levels and are likely unable to meet such growing demand." Id.

The FMP submitted by the Gulf Council incorporated a Programmatic Environmental Impact Statement ("PEIS"). The lengthy document presented ten discrete actions that would comprise the aquaculture plan. See id. at 25-101 (discussing, inter alia, requirements for permits, applications, durations of the permits, siting requirements, and recordkeeping and reporting). For each proposed action, the FMP analyzed three management alternatives that described how each action could be implemented. Id. at 10-14 (summarizing actions and alternatives). The relevant portions of the Council's preferred version of the FMP are summarized as follows:

1. An aquaculture permit would be required for conducting offshore marine aquaculture. Such a permit would authorize the deployment and operation of an offshore aquaculture facility and the sale of allowable aquaculture species. Dealer permits are required in order to receive cultured organisms and are non-transferable. Aquaculture permits are transferable (except under limited conditions) and eligibility is limited to United States citizens and permanent resident aliens.

2. Application and operational requirements, as well as permit restrictions would be established. Some application requirements include submitting an application, providing general contact information, descriptions of systems and equipment, site location coordinates, and an emergency disaster plan. Operational requirements include a use-it- or-lose-it provision, documentation that broodstock are marked or tagged at the hatchery, certification that animals are pathogen free, and various monitoring requirements. The use of drugs, biologics, and pesticides must be in compliance with federal agency regulations.

3. An aquaculture permit would be effective for ten years and may be renewed in five-year increments.

4. The aquaculture of all species native to the Gulf and those listed in the aquaculture fishery management unit would be allowed, with the exception of shrimp and corals.

McArdle Decl., Ex. 1 at 10-13.

Before a permit application is approved, a Regional Administrator ("RA") must review it and make a preliminary determination as to whether it merits further consideration. See id. at viii, 2. If so, notice of the application is published in the Federal Register, along with notice of NOAA's intent to grant the permit. There is then a comment period of 15-45 days, during which members of the public may testify at a Council meeting. The applicant also has an opportunity to appear at a Council meeting. When the public comment period ends, the RA notifies the applicant of the decision to grant or deny the permit, provides reasons for that decision, and publishes notice of approval or disapproval in the Federal Register. Id. at 2.

Additionally, the EPA and Army Corps of Engineers ("Corps") have some responsibility over permitting offshore aquaculture. Id. at 246, 251-52. In order to proceed with an aquaculture operation, an applicant must obtain a permit for the construction of offshore aquaculture facilities from the Corps, pursuant to the Rivers and Harbor Act. See 33 U.S.C. § 403; id. at 246. Under the Clean Water Act, 33 U.S.C. § 1328, the EPA has the authority to grant or deny discharge permits for aquaculture operations. Both permitting processes include a public notice and comment period. See McCardle Decl., Ex. 1 at 251-52.

On September 3, 2009, the Fishery Management Plan for Regulating Offshore Marine Aquaculture in the Gulf of Mexico ["the FMP" or "the Aquaculture FMP"] took effect by operation of law. Pursuant to § 1854(a) of the MSA, the Gulf Council submitted its completed FMP and proposed regulations to NMFS for Secretarial review. 16 U.S.C. § 1854(a). Upon receipt of the FMP, NMFS immediately commenced review of the plan to determine if it was consistent with the ten national standards for fishery conservation and management, other provisions of the MSA, and any other applicable law. Id. at § 1854(a)(1)(A).

As noted earlier, if NMFS decides to partially approve or disapprove an FMP, it must follow the procedure outlined in §§ 1854(a)(3)(A-C). In this case, NMFS took the "unprecedented approach" of not following this process. McCardle Decl., Ex. 2 at 1. Instead it took no action, thereby invoking the MSA provision that states:

If the Secretary [i.e. NMFS] does not notify a Council within 30 days of the end of the comment period of the approval, disapproval, or partial approval of a plan or amendment, then such plan or amendment shall take effect as if approved. 16 U.S.C. § 1854(a)(3). Thus, the FMP took effect by operation of law on September 3, 2009, as a result of the Secretary's inaction.

On September 3, 2009, NMFS wrote a letter to the Council explaining why it had not acted on the FMP within the 30-day statutory period. NMFS explained that the scope of the FMP went far beyond any aquaculture measures previously submitted and that it raised "important issues of national policy regarding the manner in which offshore aquaculture is regulated in the EEZ." See McCardle Decl., Ex. 2 at 1-2. Given the broad scope of the FMP, NMFS advised the Council that "it was not prudent to take action on the FMP in the absence of a comprehensive national policy" that could foster the development of environmentally sound offshore aquaculture operations. See id. NMFS explained:

As we develop a national policy, we will also examine the Plan in the context of that policy. If we determine the Plan is inconsistent with that policy, we will consider appropriate action, which could include seeking amendment or withdrawal of the [P]lan through the Magnuson-Stevens Act.Id.

That same day NMFS issued a press release publicly announcing its intent to develop such a national policy and stated that although the FMP had taken effect, regulations must be published before permits could be issued. McCardle Decl., Ex. 3 at 1.B.

B. Procedural History

On October 2, 2009, Plaintiffs filed two similar lawsuits alleging violations of the MSA, NEPA, and the APA. The Court consolidated the two lawsuits on November ...


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