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Oceana, Inc v. Gary Locke

December 20, 2011


The opinion of the court was delivered by: James E. Boasberg United States District Judge


In recognition of the persistence of overfishing and habitat loss that threaten fish populations off the coasts of the United States, and with the aim of maintaining a balance between conserving fishery resources and promoting the United States fishing industry, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (MSA), Pub. L. No. 94-265, 90 Stat. 331 (1976) (codified at 16 U.S.C. § 1801 et seq.). The MSA created eight Regional Fishery Management Councils to monitor and oversee multiple fisheries in each region's waters. 16 U.S.C. § 1852. Among each Council's primary tasks is the development and maintenance of a fishery management plan (FMP) for each fishery under its control. The MSA imposes content requirements on these FMPs, see id. § 1853(a)(15), which must ultimately be approved by the National Marine Fisheries Service (NMFS), acting on behalf of the U.S. Secretary of Commerce. Id. § 1854.

This case revolves around Amendment 16 to the New England Fishery Management Council's (NEFMC) Northeast Multispecies FMP. Among other things, Amendment 16 represents NEFMC's efforts to bring this FMP into compliance with the MSA by establishing annual catch limits for each species in the Fishery, as well as measures to ensure accountability with those limits. Oceana, Inc., a non-profit organization with the mission of protecting and restoring the world's oceans, challenges NMFS's decision to adopt Amendment 16 under the Administrative Procedure Act, 5 U.S.C. § 706(2). Oceana first claims that Amendment 16 violates the MSA in three ways: by failing to establish an adequate system to monitor compliance with annual catch limits, by failing to establish adequate accountability measures for five particular species, and by failing to establish accountability measures for the portion of a sixth species -- yellowtail flounder -- caught in the separate Scallop Fishery. Oceana also argues that, in adopting Amendment 16, NMFS violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., by failing both to take a hard look at the environmental impacts of the Amendment and to consider all reasonable alternatives to one provision, the ABC Control Rule.

Both sides have now moved for summary judgment. Although analysis of this dense administrative record is no simple matter, the Court ultimately finds in favor of Defendants on each of Plaintiff's claims save one: that Amendment 16 fails to establish adequate accountability measures for five species. This violation requires a limited remand.


A. Statutory Background

1. The Magnuson-Stevens Act

Most recently amended by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, 120 Stat. 3575 (2007), the MSA aims, inter alia, to "conserve and manage [U.S.] fishery resources," "promote domestic commercial and recreational fishing under sound conservation and management principles," and "provide for the preparation and implementation, in accordance with national standards, of fishery management plans . . . [to] achieve and maintain . . . the optimum yield from each fishery." 16 U.S.C. § 1801(b). It also establishes eight "Regional Fishery Management Councils to exercise sound judgment in the stewardship of fishery resources through the preparation, monitoring, and revision of such plans." Id. For the present case, the New England Fishery Management Council is the relevant Council.

Each Council's voting membership is comprised of state and federal officials from the region with "marine fishery management responsibility and expertise," as well as individuals appointed by the Secretary of Commerce who are knowledgeable regarding, e.g., the conservation and management of the fishery resources of the geographical area concerned. Id. §§ 1852(b)(1)-(2). The primary responsibilities of each Council include:

 "for each fishery under its authority that requires conservation and management, prepar[ing] and submit[ting] to the Secretary (A) a fishery management plan, and (B) amendments to each such that are necessary," id. § 1852(h)(1) (emphases added);

 "conduct[ing] public hearings . . . so as to allow all interested persons an opportunity to be heard in the development of fishery management plans and amendments to such plans," id. § 1852(h)(3); and

 "develop[ing] annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process . . . ." Id. § 1852(h)(6) (emphasis added).

To assist each Council in carrying out its responsibilities, the MSA provides for the creation of standing committees of scientists and fishing-industry experts that report periodically on the status and health of fish stocks in each fishery, peer-review new scientific methods for fishery conservation and management, and advise the Council throughout the process of preparing and amending fishery management plans (FMPs). See id. §§ 1852(g)(1); 1852(g)(3)(A); 1852(i)(5).

The Council's FMPs and amendments must conform to the "national standards for fishery conservation and management" established by the MSA, see id. § 1851(a), and must contain certain required provisions. See id. § 1853(a). Two of the MSA's requirements for FMPs are at the center of the controversy here. They read as follows:

Any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, shall -- . . .

(11) establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable and in the following priority -- (A) minimize bycatch; and (B) minimize the mortality of bycatch which cannot be avoided. and . . .

(15) establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.

Id. §§ 1853(a)(11), (15) (emphases added). In addition to the MSA's mandatory national standards and content requirements, the Secretary has promulgated "advisory guidelines," the National Standards Guidelines, "which shall not have the force and effect of law," but which the Regional Councils may use "to assist in the development of fishery management plans." Id. § 1851(b). The National Standards Guidelines are codified at 50 C.F.R. §§ 600.305-600.355.

Once prepared, each Council submits proposed FMPs to NMFS, which acts in practice on behalf of the Secretary of Commerce to "approve, disapprove, or partially approve" the plan or amendment. 16 U.S.C. § 1854(a)(3); see also Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 210 n.2 (D.D.C. 2005). In determining whether or not to approve an FMP, NMFS must review it for consistency with the requirements of the MSA, including the national standards and content requirements found at §§ 1851(a) and 1853(a), and, following a 60-day public notice-and-comment period, "take into account the information, views, and comments received from interested persons." 16 U.S.C. §§ 1854(a)(1)-(2).

If, upon completing this review, NMFS approves the FMP or amendment, a final rule and one or more implementing regulations are published in the Federal Register. See id. § 1854(b)(3). Approved FMP amendments are subject to judicial review for 30 days under the Administrative Procedure Act, 5 U.S.C. § 706. See id. § 1855(f)(1).


The National Environmental Policy Act requires federal agencies to consider the environmental impact of "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The approval of FMPs and amendments to FMPs are considered major Federal actions within the meaning of NEPA. See, e.g., Conservation Law Foundation v. Mineta, 131 F. Supp. 2d 19 (D.D.C. 2001). Before NMFS can approve an FMP amendment, NEPA requires the preparation of one of three levels of documentation based on the extent of the project's impact on the environment. See 40 C.F.R. §§ 1501.4(a)-(b). Projects that significantly affect the environment require the preparation of the highest, most detailed level of documentation -- an Environmental Impact Statement (EIS). See 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.11.

For actions warranting the preparation of an EIS, NEPA requires that the agency consider reasonable alternatives to the proposed action. An EIS must "inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts [of the proposed action] or enhance the quality of the human environment." Id. § 1502.1. To meet this requirement, in its EIS an agency must, inter alia, "[r]igorously explore and objectively evaluate all reasonable alternatives" to its chosen action. Id. § 1502.14(a).

A court may review an agency's failure to comply with NEPA under § 706 of the APA. See Baltimore Gas and Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 90 (1983).

B. Amendment 16

NEFMC oversees nine separate fisheries, each dealing with one or more different species. One of these is the Northeast Multispecies Fishery (also called the "Groundfish Fishery" after the types of fish dwelling there), which consists of 13 species divided into 20 stocks that live in the waters off New England and the Mid-Atlantic states. A "stock" of fish means "a species, subspecies, geographical grouping, or other category of fish capable of management as a unit."

16 U.S.C. § 1802(42). Like each of the nine NEFMC fisheries, the Multispecies Fishery has its own FMP. A brief history of the Multispecies FMP, its amendments, and previous litigation over them is worth describing here.

The Multispecies FMP was initially prepared by NEFMC in 1985. See 1985 Multispecies FMP (available at: (last visited 12/13/2011)). In 1994, NMFS approved Amendment 5 to the FMP, which instituted the days-atsea (DAS) effort-control program. See SBRM Am., § 2.8 (Description of Northeast Multispecies FMP) (AR 78 at 6942). The DAS program is an "input-based" management system, meaning it limits the amount of time vessels spend fishing -- i.e., their "efforts" to catch fish. The program aims to reduce overfishing by limiting the number of days per year that fishing vessels may operate in the area of the fishery. See Def. Mot. at 56; Am. 16 Record of Decision at 16 (AR 889 at 52110). For the next ten years, NEFMC and NMFS sought to combat dwindling fish stocks through a series of reductions in the number of days permitted at sea. Record of Decision at 16 (AR 889 at 52095); see generally Am. 16, § 3.1 (Brief History of Prior Management Actions) (AR 773 at 47809-12).

In 2004, NMFS implemented Amendment 13, which established the "sector" program as an alternative fishery-management regime to the DAS program. See Am. 13 Final Rule, 69 Fed. Reg. 22,906 (Apr. 27, 2004). Beginning with Amendment 13, fishing vessels could join "sectors," which are "temporary, voluntary, fluid associations of vessels." Am. 16 Final Rule, 75 Fed. Reg. 18,262, 18,275 (Apr. 9, 2010) (AR 997 at 56499). Fishermen who opt not to join a sector may continue to fish as part of the "common pool." See Am. 16, § (AR 773 at 47855). Fishermen who do join sectors "voluntarily agree to abide by certain fishing restrictions and work together to manage an annual allocation of fish." Plf. Reply at 8 n.7 (citing NOAA Fisheries Service Fact Sheet, Answers to Commonly Asked Sector Management Questions 1 (2009), Aug%2009.pdf). In exchange, participation in a sector exempts fishermen from many of the Fishery's input controls, such as the DAS program. Removing DAS limits while requiring sector vessels to adhere to fishing quotas represents a shift in management strategy from an "input-based" system to an "output-based" system. See Am. 16 Final Rule, 75 Fed. Reg. at 18,276 (AR 997 at 56500). The latter hinges not on fishing efforts, but on results -- i.e., the amount of fish caught, which represents each vessel's fishing "output." This shift in strategy is significant for the Court's purposes because it requires changes in the manner in which overfishing is monitored.

In addition to introducing the sector program, Amendment 13 sought to bring the Multispecies FMP into compliance with MSA § 1853(a)(11)'s requirement that all FMPs contain a standardized bycatch reporting methodology. The term "'bycatch' means fish which are harvested in a fishery, but which are not sold or kept for personal use" -- i.e., discarded fish. 16 U.S.C. § 1802(2). As with Amendment 9 before it, however, another court in this district held that Amendment 13 failed to "establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery," as required by § 1853(a)(11). See Oceana, Inc. v. Evans, No. 04-811, 2005 WL 555416, at *43 n.36 (D.D.C. Mar. 9, 2005) (remanding portion of Amendment 13 concerning bycatch reporting methodology); Conservation Law Foundation v. Evans, 209 F. Supp. 2d 1, 13 (D.D.C. 2001) (holding Amendment 9 and Framework 33 failed to establish required bycatch reporting methodology).

In response to these rulings, in 2007, NMFS approved the Northeast Region Standardized Bycatch Reporting Methdology (SBRM) Amendment. AR 78. The SBRM Amendment is an omnibus amendment to the fishery management plans of the Mid-Atlantic and New England Regional Fishery Management Councils and constitutes Amendment 15 to the Multispecies FMP. See SBRM Am. at i (AR 78 at 6891-93). NMFS published the final rule implementing the SBRM Amendment in January 2008. See SBRM Am. Final Rule, 73 Fed.Reg. 4,736 (Jan. 28, 2008).

The methodology described in the SBRM Amendment consists of data-collection procedures coupled with analyses and statistical tools used to estimate bycatch in a fishery. See SBRM Am., § 5.1 (AR 78 at 7033). The SBRM Amendment's data-collection procedures are most relevant to this case. To collect the necessary data to accurately monitor bycatch, NMFS relies primarily on the Northeast Fisheries Observer Program (NEFOP), through which government-funded on-board observers monitor the bycatch discards of fishing vessels at sea. Id., § 4.5 (AR 78 at 7009). Observers are allocated to vessels at the level necessary to ensure sufficient data is collected to meet the SBRM's performance standard. Id., § 6.2.3 (AR 78 at 7099). This standard is expressed in terms of statistical precision: bycatch estimates must be "sufficient to attain a [coefficient of variation (CV)] of no more than 30 percent." Id., § 6.3.2

(AR 78 at 7110). The 30% CV standard is designed "to ensure that the bycatch-related data collected under the SBRM and utilized in stock assessments and management is adequate for those tasks." Id. (AR 78 at 7109).

Oceana challenged the SBRM Amendment under the APA in this district in Civil Action No. 08-318 (Feb. 25, 2008). On July 23, 2010, Judge Ellen Huvelle upheld the SBRM Amendment, including its 30% CV performance standard, finding that "the agency's actions in developing and approving the Amendment were reasonable and in accordance with the law." Oceana, Inc. v. Locke, 725 F. Supp. 2d 46, 72 (D.D.C. 2010). On July 19, 2011, the D.C. Circuit reversed Judge Huvelle's ruling and remanded the case back to her for the purpose of vacating the SBRM Amendment and remanding it to NMFS. Oceana, Inc. v. Locke, No. 10-5299, 2011 WL 2802989, at *5 (D.C. Cir. July 19, 2011). The D.C. Circuit based its ruling, however, on a provision in the Amendment rendering the SBRM non-binding on NMFS "'[i]n any year in which external operational constraints would prevent the [agency] from fully implementing the required at-sea observer coverage levels.'" Id. at *2 (quoting 73 Fed. Reg. 4736, 4738 (Jan. 28, 2008)). Finding that this exception to the SBRM "grants the Fisheries Service substantial discretion both to invoke and to make [observer] allocations according to a non-standardized procedure," the court "h[e]ld that the Service did not 'establish' a standardized methodology under the Fisheries Act." Id. at *5. The D.C. Circuit did not otherwise reach the merits of the SBRM Amendment's bycatch-reporting methodology. On September 15, 2011, Judge Huvelle vacated the SBRM Amendment and remanded the case to NMFS "for further proceedings consistent with the opinion of the Court of Appeals." Oceana v. Locke, No. 08-318 (D.D.C. Sept. 15, 2011) (Order).

While the litigation over the SBRM Amendment was pending, NEFMC proposed and NMFS adopted Amendment 16 to the Multispecies FMP. In doing so, NEFMC sought to comply with the 2007 amendments to the Magnuson-Stevens Act, as well as the continuing dilemma of overfishing in the fishery, by making three major changes to the Multispecies FMP. First, Amendment 16 reduces the total number of days-at-sea allocated to common-pool vessels by 32% from 2009. AR 961 at 56142. Second, Amendment 16 expands the sector program and requires that each sector adhere to a hard total allowable catch (TAC), also called an "annual catch entitlement" (ACE), for each stock in the fishery. Am. 16 Final Rule 75 Fed. Reg. at 18,276 (AR 997 at 56500). In the wake of this expansion, more than 55% of federal permit holders, who conduct more than 98% of the fishing taking place in the Multispecies Fishery, have joined sectors. See Sector Operations Final Rule, 75 Fed. Reg. 18,113, 18,114 (Apr. 9, 2010) (AR 996 at 56466); AR 961 at 56170; AR 967 at 56258. Third and most important for the instant case, Amendment 16 attempts to satisfy § 1853(a)(15)'s requirement that FMPs "establish a mechanism for specifying annual catch limits [ACLs] . . . at a level such that overfishing does not occur in the fishery, including measures to ensure accountability" with those limits. Id.; see Am. 16 Final Rule, 75 Fed. Reg. at 18,266-71) (AR 997 at 56490-95). Such measures are referred to as "accountability measures" or "AMs." It is Amendment 16's mechanism for monitoring compliance with ACLs and its alleged lack of AMs for certain species that Plaintiff challenges in the present suit.

NMFS implemented Amendment 16 through the adoption of three sets of regulations: the Amendment 16 Final Rule, 75 Fed. Reg. 18,262 (Apr. 9, 2010) (AR 997), codified at 50 C.F.R § 648, which implements Amendment 16 itself; the Sector Operations Final Rule, 75 Fed. Reg. 18,113 (Apr. 9, 2010) (AR 996), which approves 17 sector-operations plans for FY 2010s; and Framework Adjustment 44, 75 Fed. Reg. 18,356 (Apr. 9, 2010) (AR 1001). A framework adjustment is an abbreviated administrative procedure that may be used in certain situations to modify or update an FMP without completing the full amendment process. See 50 C.F.R. § 648.90. Framework Adjustment 44 sets the specific catch limits for FY 2010 to FY 2012 using the process defined by Amendment 16. 75 Fed. Reg. 18,113 (AR 1001).

Amendment 16 has already survived challenges under the Magnuson-Stevens Act and NEPA in the U.S. District Court for the District of Massachusetts. See City of New Bedford v. Locke, No. 10-10789, 2011 WL 2636863 (D. Mass. June 30, 2011) (Order granting Agency's Motion for Summary Judgment and denying Plaintiffs' Motion for Summary Judgment). A group of plaintiffs led by the City of New Bedford, Massachusetts, challenged Amendment 16 on a number of issues not disputed here. Most relevant to this case were New Bedford's assertions that Amendment 16's "ACLs for some stocks are overly conservative," and that NFMS failed to consider a particular alternative action favored by the plaintiffs in violation of NEPA. Id. at *7-9. In other words, while Oceana here maintains Amendment 16 is not sufficiently restrictive, the plaintiffs there argued the opposite.

Judge Rya Zobel found Amendment 16's ACLs to be reasonable: "The Agency decided upon the A16 ACL methodology after a reasoned and scientifically grounded process, including the Groundfish Assessment Review Meeting, a year-long effort by at least 18 fishery scientists to assess the health of groundfish stocks. . . . The ACLs are not arbitrary." Id. at *7 (citing AR 773 at 47831-42; AR 320 (GARM III Report); AR 615 (recommendations of Scientific and Statistical Committee)). Regarding New Bedford's NEPA claim, Judge Zobel found the Agency's decision to defer consideration of the alternative identified by the plaintiffs to a future Amendment 17 of the Multispecies FMP to be permissible, particularly in light of the MSA's time constraints for ending overfishing and instituting plans to rebuild the Fishery. Id. at *9.

C. The Current Action

Plaintiff Oceana is "a non-profit international advocacy organization dedicated to protecting and restoring the world's oceans through policy, advocacy, science, law, and public education." Compl., ¶ 23. Although headquartered in Washington, D.C., Oceana claims "6,000 members in the coastal states from Maine to Florida," who "use and enjoy the oceans for numerous [recreational and commercial] activities" and "consume seafood." Id., ¶¶ 23-24. Its members are harmed, Oceana alleges, by "unsustainable fishing practices in Northeast fisheries" generally and by "the Fisheries Service's failure to establish adequate catch monitoring systems and accountability measures" in particular. Id., ¶¶ 24-25.

On May 7, 2010, Oceana filed this action for Declaratory and Injunctive Relief against Secretary of Commerce Gary Locke; the National Oceanic and Atmospheric Administration (NOAA), a scientific agency within the Department of Commerce; and the National Marine Fisheries Service (NMFS), a division of NOAA. (The Court at times refers to Defendants collectively as "NMFS.") In its Complaint, Plaintiff alleges that Amendment 16 violates the APA by failing to comply with the Magnuson-Stevens Act in three ways: (1) by "us[ing] an inadequate performance standard for monitoring bycatch," (2) by "fail[ing] to establish accountability measures for a number of species subject to catch limits," and (3) by "fail[ing] to establish accountability measures for yellowtail flounder caught in the scallop fishery." Compl. at 12, 15, 16. Plaintiff further alleges that the Amendment violates the APA by failing to comply with NEPA in two ways: (1) by "fail[ing] to take a hard look at the environmental impacts of including or excluding stocks from the catch limit system," and (2) by "fail[ing] to consider any alternatives to the ABC Control Rule other than the no action alternative." Id. at 17-18. It seeks to "compel the Fisheries Service to establish an adequate management system to enforce annual catch limits, including a bycatch monitoring system sufficient to provide the catch data needed to enforce catch limits, and the required accountability measures to reduce the amount of groundfish caught as bycatch in the New England fisheries, so that overfishing is prevented and those overfished stocks can be rebuilt, as required by law." Id., ¶ 16.

On March 11, 2011, Oceana moved for summary judgment on each of its claims. On April 15, 2011, NMFS cross-moved for summary judgment. The Court now considers these Motions.

II.Legal Standard

Although styled Motions for Summary Judgment, the pleadings in this case more accurately seek the Court's review of an administrative decision. Final agency decisions under the Magnuson-Stevens Act and NEPA are reviewed under the standard set forth by the APA. See Oceana, Inc. v. Locke, 725 F. Supp. 2d 46, 53 (D.D.C. 2010), rev'd on other grounds, No. 10-5299, 2011 WL 2802989 (D.C. Cir. July 19, 2011) (citing 16 U.S.C. § 1855(f)(1)(B) (reviewing court may set aside challenged regulation or action based only on grounds specified in 5 U.S.C. § 706(2)). In such a case, summary judgment merely serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. SeeRichards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited inBloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir. 2003).

The APA "sets forth the full extent of judicial authority to review executive agency action for procedural correctness." F.C.C. v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1810 (2009). It requires courts to "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Under this "narrow" standard of review, "a court is not to substitute its judgment for that of the agency," Motor Vehicle Manufacturers Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), and "will defer to the [agency's] interpretation of what [a statute] requires so long as it is 'rational and supported by the record." Oceana, Inc. v. Locke, 2011 WL 2802989, at *2 (D.C. Cir. July 19, 2011) (quoting C & W Fishing Co. v. Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1994)).

An agency is nonetheless required to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. (internal quotation omitted). The reviewing court thus "may not supply a reasoned basis for the agency's action that the agency itself has not given." Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974) (internal quotation omitted). Nevertheless, a decision that is not fully explained may be upheld "if the agency's path may reasonably be discerned." Id. at 286. The Court should focus its review on the administrative record. See 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.").

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." Baltimore Gas and Elec. Co., 462 U.S. at 97-98; see alsoNevada 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").


As a preliminary matter, Plaintiff asserts -- and Defendants do not dispute -- that Oceana has standing to bring this lawsuit. Because this point is uncontested and other courts in this Circuit have without pause reached the merits of Oceana's claims challenging FMP Amendments and NMFS regulations in other cases, this Court will do the same. See, e.g., Oceana, Inc. v. Locke, No. 10-5299, 2011 WL 2802989 (D.C. Cir. July 19, 2011); Oceana, Inc. v. Evans, No. 04-811, 2005 WL 555416 (D.D.C. Mar. 9, 2005); Oceana, Inc. v. Evans, 384 F. Supp. 2d 203 (D.D.C. 2005).

In proceeding to the merits, the Court will first evaluate Plaintiff's claims under the Magnuson-Stevens Act and then move to consider the effect of NEPA.

A. The Magnuson-Stevens Act

Oceana asserts three bases for its claim that Amendment 16 violates the MSA, all arising from that statute's requirement that FMPs shall "establish a mechanism for specifying annual catch limits . . . at a level such that overfishing does not occur in the fishery, including measures to ensure accountability." 16 U.S.C. § 1853(a)(15). Oceana does not dispute that Amendment 16 establishes a mechanism for specifying ACLs; indeed, Amendment 16 establishes a mechanism for setting an ACL for each stock, a sub-ACL in each stock for sector vessels generally, and an "annual catch entitlement" (ACE) of each stock for each particular sector of vessels. See Am. 16, §§ 4.2.1,,, 4.2.3 (AR 773 at 47843-54). Rather, Plaintiff challenges the mechanisms Amendment 16 establishes to monitor compliance with, and ultimately ensure accountability with, those ACLs. The Court will consider each of Oceana's three challenges in turn.

1. Bycatch Monitoring

Oceana first challenges Amendment 16's provisions relating to bycatch monitoring. It argues that Amendment 16 fails to comply with two subsections of the MSA, § 1853(a)(15) and § 1853(a)(11). Subsection (a)(15) requires that FMPs (and their amendments) establish "measures to ensure accountability" with annual catch limits. Subsection (a)(11) requires FMPs to "establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery." Though both parties agree that bycatch must be accurately monitored before ACLs can be enforced, see Plf. Mot. at 2; Def. Mot. at 12, Oceana interprets the MSA as requiring FMPs to include a bycatch-reporting methodology (as required by § (a)(11)) capable of monitoring compliance with ACLs (as required by § (a)(15)). See Plf. Mot. at 2-3. Amendment 16, Plaintiff contends, fails to establish such a methodology and, for this reason, violates both § (a)(15) and § (a)(11). See id. at 17-21.

NMFS responds that Oceana's interpretation improperly fuses and conflates two independent statutory requirements -- § (a)(15)'s requirement that FMPs establish measures to ensure accountability with ACLs, and § (a)(11)'s requirement that they establish a standardized bycatch-reporting methodology. See Def. Mot. at 20-22. In doing so, the Agency asserts, Oceana would have the Court hold Amendment 16 to a higher standard than is required by the MSA. Unlike § (a)(11), NMFS contends, § (a)(15) does not require the inclusion of a bycatch-reporting methodology in the FMP. When evaluated under the proper statutory framework, NMFS argues, Amendment 16's bycatch-monitoring provisions are sufficient. See id. at 21.

To address the parties' arguments, the Court must first determine what the MSA requires and then evaluate whether Amendment 16 complies. Because the Court concludes that § (a)(15) and § (a)(11) impose two distinct requirements, as opposed to one fused mandate, the Court must also decide whether Amendment 16 complies with each of these subsections separately. The Court ultimately holds that Amendment 16 satisfies § (a)(15) with respect ...

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