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Oceana, Inc. v. Pritzker

United States District Court, District of Columbia

February 18, 2014

OCEANA, INC., Plaintiff,
v.
PENNY PRITZKER, et al., Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

The Magnuson-Stevens Fishery Conservation and Management Act of 1976 balances the twin goals of conserving our nation’s aquatic resources and allowing U.S. fisheries to thrive. To further those ends, the Act sets forth a detailed regulatory scheme that engages both the Secretary of Commerce – through her delegate, the National Marine Fisheries Service – and eight regional Fishery Management Councils in overseeing the harvest of our nation’s oceans. The Service and Councils manage fisheries largely through Fishery Management Plans, which help to set caps on catch and outline procedures for monitoring commercial fishing. Those Plans are kept current through Plan Amendments, which go through a lengthy approval process and can enact major changes, and Framework Adjustments, which are expedited alterations that modify Plans and ensure that fisheries benefit from up-to-the-minute innovations and data.

Oceana, a conservation organization and Plaintiff in this case, challenges a recent Framework Adjustment and related regulation. Framework 48 altered the details of a New England fishery program that sends third-party observers onto vessels to collect data on catch. The Sector Operations Rule, as a corollary, set the coverage level for observers at 22% of trips in the 2013 fishing year. In its lawsuit and current Motion for Summary Judgment, Oceana first claims that the Framework Adjustment contravenes the mandates of the Northeast Multispecies Fishery Management Plan, suffers from procedural flaws, and violates the directives of both the Magnuson-Stevens Act and the Administrative Procedure Act. Plaintiff further argues that the Sector Operations Rule sets an unreasonably low coverage level and violates the APA. Defendants, which include the Service, the Secretary of Commerce, and the National Oceanic and Atmospheric Administration, disagree and have cross-moved for summary judgment. Although the issues require some fairly technical analysis, the Court ultimately rules for the Service, finding that its actions were well reasoned and are consistent with governing law.

I. Background

At bottom, this case is about whether the National Marine Fisheries Service is providing sufficient monitoring to ensure that commercial fishers stick to their allotted catch limits. Oceana alleges that the current regulations do not clear that bar and instead prioritize cost over conservation. The Service takes an opposing view. A warning to uninitiated readers: to understand Plaintiff’s contentions and the Service’s response, some basic background on fishing regulation is necessary. That is where the Court begins.

The persistence of overfishing in U.S. waters led Congress to enact the Magnuson-Stevens Act, Pub. L. No. 94-265, 90 Stat. 352 (1976), amended by Pub. L. No. 109-479, 120 Stat. 3575 (2007). That Act 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).[1] The Act tasks the Secretary of Commerce with the pursuit of those goals, and the Secretary has in turn delegated her responsibility to the National Marine Fisheries Service. See id. § 1802(39); Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 101 (D.D.C. 2011). In addition, the Act sets up eight regional Fishery Management Councils, each of which monitors and oversees certain fisheries under its control. See 16 U.S.C. §§ 1852(a), (h). Together, the Service and the Councils act to address imbalances in aquatic ecosystems.

The Councils’ and Service’s efforts are guided by individual Fishery Management Plans. Each Council must develop and maintain a Plan for each fishery under its control, which then must be approved by the Service. Id. §§ 1852(h), 1854(a). Plans must be consistent with the requirements of the Act and, specifically, with the Act’s ten National Standards, see Id. §§ 1853(a), 1854(a), which require the Council and the Service to balance competing goals such as “prevent[ing] overfishing while achieving” an “optimum yield from each fishery.” See Id. § 1851(a). To keep Plans up to date, the Councils and the Service occasionally publish Amendments, which alter Plans in broad strokes, see id. § 1854(a), and Framework Adjustments, which are expedited changes that modify Plans in more modest ways. See id. §§ 1853(c), 1854(b); 50 C.F.R. § 648.90(c).

In this case, Oceana is suing the Service and other government Defendants over a Framework Adjustment to the Northeast Multispecies Fishery Management Plan,[2] as well as a related regulation. That Plan was authored by the New England Fishery Management Council and controls a substantial amount of fishing off the nation’s northeast coast. See New England Fishery Management Council, Summary of Northeast Multispecies Fishery Management Plan, available at http://www.nefmc.org/nemulti/summary/largemeshmulti.pdf. The Plan regulates the region’s “groundfish” fishery, which covers 13 different species of fish, such as cod, haddock, and flounder, divided into 19 stocks. See Framework Adjustment 48 at 154 (AR 26,195). Among other things, the Plan contains a mechanism for determining an Annual Catch Limit (ACL) for each stock in the fishery. See Amendment 16 Final Rule, 75 Fed. Reg. 18,262, 18,266-71 (April 9, 2010). The Plan also outlines mechanisms for the Service to monitor and enforce those ACLs to prevent overfishing. See id.

The fishery is governed by a sector system, which is now the primary means of allocating groundfish catch. Sectors are “temporary, voluntary, fluid associations of vessels” that share an apportionment of certain stocks of fish. Id. at 18,275. Fishermen who do not join a sector may continue to fish as part of the “common pool,” which carries its own limitations. See Amendment 16 at 99-100 (AR 480-81). Fishermen who do join sectors, however, agree to abide by certain fishing restrictions and work together to manage their annual share of each stock of fish, known as the sector’s Annual Catch Entitlement (ACE). See NOAA Fisheries Service Fact Sheet: Answers to Commonly Asked Sector Management Questions 1 (2009), available at http://www.nero.noaa.gov/sfd/sectordocs/Sector%20Management%20Fact%20Sheet% 20Aug% 2009.pdf. Each ACE for a given stock of fish represents a portion of the fishery’s total ACL for that stock, and by monitoring ACEs, the Council ensures that the fishery’s overall limit is not exceeded during the fishing year. See Amendment 16 at 101-02 (AR 482-83). Due to the sector system’s advantages over the common pool, most permit holders have joined sectors and 98% of fish are caught through that system. See 2010 Sector Operations Final Rule, 75 Fed. Reg. 18,113, 18,114-15 (Apr. 9, 2010); Framework Adjustment 48 at 156 (AR 26,197).

To ensure compliance with their ACEs for each stock, sectors are required to monitor and report on their overall catch. See 2013 Sector Operations Plans Interim Final Rule, 78 Fed. Reg. 25,591, 25,606 (May 2, 2013). This includes submitting reports to the Service on a weekly basis, which are corroborated by data from dealers purchasing fish from sectors. See id. A sector must submit daily reports once it approaches its ACE for any given stock. See id. The catch reported consists of a sector’s “landings” – that is, fish that are caught and later sold – as well as “bycatch.” See id. The term “bycatch” means discards –“fish which are harvested in a fishery, but which are not sold or kept for personal use.” 16 U.S.C. § 1802(2). Discards are estimated for each sector using a “discard rate” that the Service calculates using data from paid third-party observers. See Amendment 16 at 109-10 (AR 490-491). Those estimated discards are added to the landings to monitor how close the sector is to reaching its ACE for a given stock. See id.

The Act requires each Plan to contain a Standardized Bycatch Reporting Methodology or SBRM – a system for reporting and estimating bycatch. See 16 U.S.C. § 1853(a)(11). The Council, per its groundfish Plan, tracks and estimates bycatch through two main programs. First, there is the Northeast Fisheries Observer Program (NEFOP), which operates in multiple fisheries and monitors catch and bycatch for both sector ships and the common pool. See 78 Fed. Reg. at 25,606; see also NEFOP, MRAG Americas, http://www.mragamericas.com/observer-programs/ northeast-fishery-observer-program (last visited Feb. 14, 2014). That program sends government-funded on-board observers to monitor the operation of fishing vessels at sea. See SBRM Amendment § 4.5, available at http://nero.noaa.gov/mediacenter/2013/09/2013 nersbrmdraftamendment.pdf. The NEFOP is governed by the SBRM Amendment to the Plan, which outlines specific statistical tools used to estimate bycatch. See id. § 5.1. Observers are allocated to vessels at a level that ensures that enough data is collected to meet the SBRM’s performance standard for the fishery as a whole. See id., § 6.2.3. That 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.

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. In general, CVs measure how far sample numbers usually deviate or vary from the average sample, although the Service’s calculation differs slightly from the standard CV formula. See Framework Adjustment 48 at 387 (AR 26,428). Still, the Service’s CV calculation aims to measure how widely the samples of discards fluctuate and whether they are precise enough to yield valid estimates of bycatch. Taking more samples, of course, should increase the precision of estimates. This year, 8% of trips must be observed by NEFOP to meet the CV standard. See 78 Fed. Reg. at 25,597.

The second program that tracks bycatch is specifically designed for sector vessels in the groundfish fishery and provides coverage in addition to NEFOP. See id. at 25,606. That program, known as the At-Sea Monitoring (ASM) program, lies at the heart of this case. The ASM program was first outlined by the Council in Amendment 16 to the Plan, which created the program and mandated that it, too, meet the 30% CV standard. See Amendment 16 at 109 (AR 490) (“minimum coverage levels must meet the coefficient of variation in the Standardized Bycatch Reporting Methodology”). Amendment 16 stated that the “primary goal of observers or at-sea monitors for sector monitoring is to verify area fished, catch, and discards by species, by gear type.” Id. Although coverage levels must meet a 30% CV, “[t]he required levels of coverage will be set by” the Service each year, based on relevant data, “and may consider factors other than the SBRM CV standard when determining appropriate levels.” Id. In any event, “[l]ess than 100% electronic monitoring and at-sea monitoring observation will be required.” Id. Amendment 16 offered only those broad guidelines for the program, and it otherwise left sectors and the Regional Administrator to determine the details of monitoring. Id. at 110 (AR 491). In a (too) long Opinion in 2011, this Court largely upheld Amendment 16 after Oceana had filed suit. See Locke, 831 F. Supp. 2d 95.

Framework 48, which Plaintiff challenges in this case, was designed to flesh out and clarify Amendment 16’s ASM program, among other things. The Framework contains two major changes highlighted by Oceana. First, it sets out specific goals and objectives for monitoring programs beyond merely “verify[ing] area fished, catch, and discards by species, by gear type.” Amendment 16 at 109 (AR 490); see Framework 48 at 49-50 (AR 26,090-91). Second, it specifies what cut of data – i.e., which group of discard estimates – the CV standard applies to. See id. at 50-51 (AR 26,091-92). The lingering question left open in Amendment 16 was whether the standard applied to each stock of fish for the fishery as a whole, or to each stock of fish caught by each sector, or to some other slice of data. In Framework 48, the Council determined that the CV should apply at the broader stock level rather than to each sector’s catch of that stock. See id.

After Framework 48 had clarified those details of the ASM program, the Service issued its 2013 Sector Operations Rule, which set the overall observer coverage level at 22% of all sector trips for the 2013 fishing year, which covers fishing from spring 2013 to spring 2014. See 78 Fed. Reg. at 25,597; 50 C.F.R. § 648.2. This was a lower level than the 38% level set for 2010 and 2011 and the 25% level set for 2012. See 75 Fed. Reg. at 18,126; 78 Fed. Reg. at 25,597; Summary Report at 2 (AR 25,798); Pl. Mot. at 7. Ultimately, that means that the Service plans to fund an additional 14% ASM coverage beyond the 8% provided by the NEFOP. See 78 Fed. Reg. at 25,597.

Plaintiff contends that Framework 48 and the Sector Operations Rule are inconsistent with Amendment 16, improperly promulgated, inconsistent with the Magnuson-Stevens Act, and arbitrary and capricious. After Oceana filed its Complaint, the Government moved to transfer this case to the District of Massachusetts, a motion that the Court ultimately denied. See Oceana, Inc. v. Pritzker, No. 13-770, 2013 WL 5801755 (D.D.C. Oct. 28, 2013). Plaintiff has moved and Defendants have cross-moved for summary judgment; the Court now turns to those Motions.

II. Legal Standard

The Magnuson-Stevens Act incorporates the Administrative Procedure Act’s familiar “arbitrary and capricious” standard of review. See 16 U.S.C. § 1855(f)(1); 5 U.S.C. § 706(2)(A). Because of the limited role federal courts play in reviewing such administrative decisions, the typical Federal Rule 56 summary-judgment standard does not apply to the parties’ dueling Motions. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006) (citing Nat’l Wilderness Inst. v. United States Army Corps of Eng’rs, 2005 WL 691775, at *7 (D.D.C. 2005)). Instead, in APA and MSA cases, “the function of the district court is to determine whether or not . . . the evidence in the administrative record permitted the agency to make the decision it did.” Id. (internal citations omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and otherwise consistent with the APA standard of review. See Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002) (citing Richards v. INS, 554 F.2d 1173, 1177 (D.C. Cir. 1977)).

The APA 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 – which appropriately encourages courts to defer to the agency’s expertise, see Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) – an agency is 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 marks omitted). In other words, courts “have held it an abuse of discretion for [an agency] to act if there is no evidence to support the decision or if the decision was based on an improper understanding of the law.” Kazarian v. U.S. Citizenship and Immigration Services, 596 F.3d 1115, 1118 (9th Cir. 2010).

It is not enough, then, that the court would have come to a different conclusion from the agency. See Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 2003). The reviewing court “is not to substitute its judgment for that of the agency,” id., nor to “disturb the decision of an agency that has examine[d] the relevant data and articulate[d] . . . a rational connection between the facts found and the choice made.” Americans for Safe Access v. DEA, 706 F.3d 438, 449 (D.C. Cir. 2013) (internal quotation marks and citation omitted). A decision that is not fully explained, moreover, may be upheld “if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).

In cases involving expert scientific judgment, courts employ a particularly high level of deference. When examining an agency’s “predictions, within its area of special expertise, at the frontiers of science,” the “reviewing court must generally be at its most deferential.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983). In addition, courts pay agencies “an extreme degree of deference” when decisions “involve complex judgments about sampling methodology and data analysis that are within the agency’s technical expertise.” Kennecott Greens Creek Mining Co. v. Mine Safety & Health Admin., 476 F.3d 946, 956 (D.C. Cir. 2007) (internal quotation marks and alterations omitted); see also Int’l Bhd. of Teamsters v. U.S. Dept. of Transp., 724 F.3d 206, 216 (D.C. Cir. 2013) (“in light of the degree of deference we give to the agency’s statistical methodology, ...


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