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Center For Biological Diversity v. Blank

United States District Court, District of Columbia

March 28, 2013

REBECCA M. BLANK, Acting Secretary, U.S. Department of Commerce, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For CENTER FOR BIOLOGICAL DIVERSITY, a nonprofit corporation, Plaintiff: William J. Snape, III, LEAD ATTORNEY, LAW OFFICE OF WILLIAM J. SNAPE III, Washington, DC; Catherine Kilduff, PRO HAC VICE, Center for Biological Diversity, San Francisco, CA; Deirdre McDonnell, CENTER FOR BIOLOGICAL DIVERSITY, Portland, OR.

For JOHN E. BRYSON, in his capacity as Secretary of the United States Department of Commerce, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, Defendants: Mark Arthur Brown, Sr., LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Wildlife & Marine Resources Section, Washington, DC.

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ROBERT L. WILKINS, United States District Judge.

The Center for Biological Diversity (" Center" ) initiated this action against the Secretary of Commerce,[1] the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service (" Fisheries Service" or " NMFS" ), seeking review of a final rulemaking issued by the Fisheries Service to modify several management measures for the western Atlantic bluefin tuna fishery. See Atlantic Highly Migratory Species: Adjustments to the Atlantic Bluefin Tuna General and Harpoon Category Retentions, 76 Fed. Reg. 74,003 (Nov. 30, 2011) (the " Final Rule" ). The Center mounts challenges to the Final Rule under the Magnuson-Stevens Fishery Conservation and Management Act (" Magnuson-Stevens Act" ), 16 U.S.C. § § 1801, et seq. , the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701, et. seq. , and the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321, et seq. This matter is presently before the Court on the parties' cross-motions for summary judgment. (Dkt. Nos. 16, 23). Upon careful consideration of the parties' briefing and a thorough review of the Administrative Record, the Court concludes, for the reasons set forth herein, that the Center's Motion for Summary Judgment will be DENIED, and that the Defendants' Cross-Motion for Summary Judgment will be GRANTED.


Atlantic bluefin tuna are highly migratory fish that range across most of the North Atlantic Ocean and its adjacent seas. Bluefin tuna have a lifespan of about 40 years, grow to more than ten feet in length, and can weigh up to 1,500 pounds. The global bluefin tuna population is comprised of two distinct stock categories--(1) the Eastern Atlantic and Mediterranean population, which spans from Norway to Africa and into the Mediterranean Sea; and (2) the Western Atlantic population, which spans from Newfoundland to the Gulf of Mexico--although the two stocks are known to mix to some extent.[2]

In the United States, Congress regulates the commercial bluefin tuna fishery through a patchwork of statutory and regulatory laws administered by the Fisheries Service, pursuant to authority delegated by the Secretary of Commerce. Presently, the Fisheries Service manages the bluefin tuna fishery in accordance with the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (" 2006 HMS FMP" ), 71 Fed. Reg. 58,058 (Oct. 2, 2006), which contains a wide range of management and allocation measures, including annual quota and subquota limits, permit requirements for commercial

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fishers, time and area closures delineating fishing seasons, daily retention limits for most categories of fishermen, and more.

Through this action, the Center seeks review of the Fisheries Service's recent modification to some of these management measures. Notably, the Final Rule at issue in this case did not change the annual quota or subquota limits for the U.S. bluefin tuna fishery. Those limits were modified by an earlier rulemaking, whereby the Fisheries Service adjusted the overall U.S. quota limit to conform to recommendations of the International Commission for the Conservation of Atlantic Tunas, and adjusted the subquota limits for each fishing category. Atlantic Bluefin Tuna Quotas and Atlantic Tuna Fisheries Management Measures, 76 Fed. Reg. 39,019 (July 5, 2011). Instead, the Final Rule made adjustments to several effort-control management measures for the fishery: (1) an increase to the " General" category maximum daily retention limit; (2) an extension of the " General" category fishing season; and (3) an increase to the " Harpoon" category daily incidental retention limit. These three changes, which are discussed in greater detail below, form the basis for the Center's challenges in this case.

A. Statutory and Regulatory Framework

1.The Magnuson-Stevens Act

Congress passed the Magnuson-Stevens Act to establish a national program for the conservation and management of the Nation's fishery resources. Congress believed that the implementation of such a program was needed " to prevent overfishing, to rebuild overfished stocks, to insure conservation, to facilitate long-term protection of essential fish habitats, and to realize the full potential of the Nation's fishery resources." 16 U.S.C. § 1801(a)(6). In turn, Congress empowered the Secretary of Commerce with " authority to create national programs for the conservation and management of fishery resources." C & W Fish Co. v. Fox, 931 F.2d 1556, 1557, 289 U.S. App. D.C. 323 (D.C. Cir. 1991); see also Kramer v. Mosbacher, 878 F.2d 134, 135 (4th Cir. 1989) (explaining that the Secretary holds " broad authority to manage and conserve coastal fisheries" ).

Under the Magnuson-Stevens Act, eight regional councils are charged with drafting and preparing " fishery management plans," 16 U.S.C. § 1852(h), that must set out measures " necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery." Id. § 1853(a)(1)(A).[3] Acting through the Fisheries Service, the Secretary then reviews the plans and their implementing regulations for compliance with the Act, solicits public comment, and publishes final regulations in the Federal Register. Id. § 1854(a)(1), (b)(1). Final implementing regulations, once promulgated by the Secretary,

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have the full force and effect of law. See generally id. § § 1854, 1855.

All fishery management plans--along with any regulations implementing those plans-- must be consistent with ten " National Standards" set forth in the Magnuson-Stevens Act. Id. § 1851(a). At issue in this case are two of these standards:

(1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield[4] from each fishery for the United States fishing industry.
(2) Conservation and management measures shall be based upon the best scientific information available.

Id. § 1851(a)(1), (2).[5] Along with these National Standards, several other provisions of the Act are relevant to this matter. First, when a fishery is identified as " overfished," as here, the Secretary must take action to " end overfishing in the fishery and to implement conservation and management measures to rebuild affected stocks of fish." Id. § 1854(e)(2). The " rebuilding" period generally should not exceed ten years, except where " management measures under an international agreement in which the United States participates dictate otherwise." Id. § 1854(e)(4)(A)(ii). Second, " with respect to a highly migratory species for which the United States is authorized to harvest an allocation, quota, or at a fishing mortality level under a relevant international fishery agreement," such as bluefin tuna, the Act directs that the Secretary shall " provide fishing vessels of the United States with a reasonable opportunity to harvest such allocation, quota, or at such fishing mortality level." Id. § 1854(g)(1)(D).

2.The Atlantic Tunas Convention Act

Along with the Magnuson-Stevens Act, the Atlantic Tunas Convention Act (" ATCA" ) provides the Secretary with additional authority to promulgate conservation and management programs for tuna fisheries. Congress enacted the ATCA as domestically-implementing legislation for the International Convention for the Conservation of Atlantic Tunas (the " Convention" ), 20 U.S.T. 2887, T.I.A.S. 6767 (1969). See S. Rep. No. 94-269, reprinted in 1975 U.S.C.C.A.N. 742, 745 (explaining that the ATCA was " needed to provide an overall conservation program, agreed to on an international basis, for the conservation of the highly migratory tunas, and to carry out U.S. responsibilities under the Convention" ). The Convention established the International Commission for the Conservation of Atlantic Tunas (" ICCAT" ), and ICCAT " on the basis of scientific evidence make[s] recommendations designed to maintain the populations of tuna and tuna-like fishes that may be taken in the Convention

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area at levels which will permit the maximum sustainable catch." Convention, Art. VIII, § 1(a). To this end, ICCAT establishes a " total allowable catch" (" TAC" ) for western Atlantic bluefin tuna, and a portion of that stock is then allocated to the United States. Under the ATCA, the Secretary may not promulgate any regulations that " may have the effect of increasing or decreasing any allocation or quota of fish or fishing mortality level to the United States agreed to pursuant to a recommendation of [ICCAT]." 16 U.S.C. § 971d(c)(3)(K). Otherwise, any regulations issued under the ATCA " shall, to the extent practicable, be consistent with fishery management plans prepared and implemented under [the Magnuson-Stevens Act]." Id. § 971d(c)(1)(C).

3.The National Environment Policy Act

NEPA is designed to " promote efforts which will prevent or eliminate damage to the environment and biosphere." 42 U.S.C. § 4321. To achieve that goal, Congress directed, through NEPA, that all federal agencies must prepare an environmental impact statement (" EIS" ) for all " major Federal actions significantly affecting the quality of the human environment." Id. § 4332(2)(C); Town of Cave Creek v. FAA, 325 F.3d 320, 327, 355 U.S. App. D.C. 420 (D.C. Cir. 2003). To determine whether an EIS must be drafted, however, the agency must first prepare an environmental assessment (" EA" ). 40 C.F.R. § 1501.4(b). The assessment must " [b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact." Id. § 1508.9(a)(1); Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66, 263 U.S. App. D.C. 426 (D.C. Cir. 1987). The EA must also discuss the need for the proposal, the alternatives to the proposed action, and the environmental impacts of the proposed action. 40 C.F.R. § 1508.9(b). Following the completion of the EA, if the agency determines that the proposed action will have no significant environmental impacts, then the agency prepares a finding of no significant impact (" FONSI" ), which completes the NEPA process without the need for a more comprehensive EIS. Id. § § 1501.4(e), 1508.13.

B. Factual and Procedural Background

1.The July 2011 Rule: NMFS's Adjustments to Bluefin Tuna Quotas

In July 2011, the Fisheries Service issued a final rule modifying the U.S. commercial bluefin tuna quota and subquotas for all commercial fishing categories in the United States. Atlantic Bluefin Tuna Quotas and Atlantic Tuna Fisheries Management Measures, 76 Fed. Reg. 39,019 (July 5, 2011); ( see also AR, G9). While these quota adjustments are not the subject of the Center's claims in this case (and, indeed, any such challenge would now be time-barred under the applicable provisions of the Magnuson-Stevens Act), the nature of parties' arguments calls for a brief summary of the circumstances surrounding the quota adjustments.

In adjusting the overall U.S. quota level through this earlier rule, the Fisheries Service adopted the ICCAT-recommended quota. (AR, G7; AR, G9). ICCAT's quota recommendations were based on information compiled through the 2010 Report of its Standing Committee on Research and Statistics (" SCRS" ), including a recent 2010 bluefin tuna stock assessment for both the eastern and western Atlantic stocks. (AR, H6 at 75-99). ICCAT's proposals were also consistent with its 20-year rebuilding plan, initially implemented in 1998 to rebuild the bluefin tuna stock to maximum sustainable yield " with at least 50% probability." (AR, H6 at 83). As with prior stock assessments, the management recommendations in the 2010 SCRS

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Report were based on two hypotheses concerning future recruitment: a " low recruitment scenario," pursuant to which bluefin stock is already rebuilt, and a " high recruitment scenario," pursuant to which bluefin stock has " a very low probability" of being rebuilt. ( Id. ).[6] ICCAT concluded " that there [was] no strong evidence to favor either the low or high recruitment scenario over the other." (AR, G7 at 1). Nevertheless, the SCRS Report indicated that under either recruitment scenario, a total allowable catch of western Atlantic bluefin of 1,800 metric tons " should allow the biomass to continue to increase." (AR, H6 at 83). In view of the rebuilding program's objectives, however, ICCAT adopted an even more conservative approach, implementing a total allowable catch of 1,750 metric tons for western Atlantic bluefin for the 2011 and 2012 fishing years. ( See AR, G7).

Thereafter, the United States implemented the ICCAT-recommended quota, through which the U.S. was allocated a total base quota of 923.7 metric tons. (AR, G7 at 2; AR, G9 at 3).[7] In short, the quota level is the total amount of bluefin tuna that the entirety of the commercial fishery can collectively harvest, ( see Dkt. No. 23-1 (" Defs.' Mem." ) at 10), and within that overall cap, each segment or category of the commercial fishery is allocated a subquota, ( see AR, G9 at 2-3). For 2011 and 2012, the General and Harpoon categories were allocated 47.1% and 3.9% shares, respectively, of the overall baseline quota. (AR, G9 at 3-4).[8] In addition, the 435.1 metric ton baseline for the General category was further subdivided into subquotas for the January, June-August, September, October-November, and December time periods. ( Id. ). With limited exceptions not applicable here, once the quota or subquota level for a fishery is reached, or is projected to be reached, the Fisheries Service must close the fishery, and fishing is prohibited until the opening of the next quota or subquota period. 50 C.F.R. § 635.28(a)(1). The final rule implementing these quota levels was published on July 5, 2011. ( See AR, G9).

2.The Final Rule: NMFS's Adjustments to General and Harpoon Category Retention Limits and Extension of the General Category Season

Along with and in addition to quota levels, the Fisheries Service manages the bluefin tuna fishery through a variety of other management measures, sometimes referred to as " effort controls." For example, the Fisheries Service requires commercial fishers to obtain appropriate licenses and permits, which limit who can catch bluefin. See 50 C.F.R. § 635.4. The Fisheries Service sets fishing seasons and issues closures of fisheries, which controls

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when (and, in some cases, where) bluefin tuna are landed. Id. § 635.28. Further, and particularly relevant to this case, the Fisheries Services imposes retention limits for different fishing categories, which restrict the number of bluefin tuna that can be landed and retained during a single fishing trip. Id. § 635.23. The Fisheries Service also retains the ability to modify or adjust many of these management measures, as appropriate, during the course of each fishing season. Id. § 635.34.

Through this lawsuit, the Center challenges the Fisheries Service's modification of several of these other measures. More specifically, the Fisheries Service implemented three changes to its bluefin tuna effort controls through the Final Rule: (1) increasing the General category daily " retention limit" ; (2) extending the General category fishing season to remain open until the January subquota is reached, or until the end of March, whichever occurs earlier; and (3) increasing the Harpoon category daily incidental " retention limit." ( See AR, E13).

First, the Final Rule modified the General category maximum possible daily retention limit.[9] (AR, E13 at 2). As explained by the Fisheries Service:

Effort controls, such as daily retention limits . . . are meant to maximize the opportunity for catching the quota and achieving biological, social, and economic benefits while balancing relative costs and negative impacts. For example, certain effort controls might provide more flexibility for the fishery by increasing retention limits when fish are known to be available on the fishing grounds in certain areas, and then reducing limits at other times so that limited quota may be available to other areas at other times.

(AR, A9 at 2). Under prior regulations, the default daily retention limit for General category fishermen was one fish per vessel, although the Fisheries Service retained the ability to increase or decrease that limit, from as low as zero to a maximum of three fish per vessel. ( Id. ). Such in-season changes are based on a variety of factors set forth in the regulations, all designed to ensure careful and judicious management of the fishery. See 50 C.F.R. ยง 635.27(a)(8) (summarizing criteria). Through the Final Rule, the Fisheries Service increased the maximum possible daily retention limit ...

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