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Oceana, Inc. v. Pritzker

United States District Court, District of Columbia

March 10, 2014

OCEANA, INC., Plaintiff,
PENNY PRITZKER, in her official capacity as Secretary of the United States Department of Commerce, et al., Defendants. and FISHERIES SURVIVAL FUND, Intervenor--Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Re Document Nos.: 36, 37, 38.

For OCEANA, INC., Plaintiff: Eric A. Bilsky, LEAD ATTORNEY, OCEANA, INC., Washington, DC; Robert F. Elgidely, LEAD ATTORNEY, GENOVESE, JOBLOVE & BATTISTA, P. A., Ft. Lauderdale, FL.


For FISHERIES SURVIVAL FUND, Intervenor Defendant: David Earl Frulla, LEAD ATTORNEY, Barbara A. Miller, KELLEY, DRYE & WARREN, LLP, Washington, DC; Shaun Michael Gehan, LAW OFFICE OF SHAUN M. GEHAN, PLLC, Washington, DC.


RUDOLPH CONTRERAS, United States District Judge.

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Denying Plaintiff's Motion for Summary Judgment; Granting Federal Defendants' Motion for Summary Judgment; and Granting Intervenor--Defendant's Motion for Summary Judgment


Plaintiff Oceana, Inc. (" Oceana" ) has filed this suit against Defendants Penny Pritzker, in her official capacity as Secretary of Commerce,[1] the National Oceanic and Atmospheric Administration (" NOAA" ), and the National Marine Fisheries Service (" NMFS" ) (collectively, " Federal Defendants" ). Oceana alleges that the Mid-Atlantic Fishery Management Council Omnibus Amendment to Implement Annual Catch Limits (ACLs) and Accountability Measures (AMs), 76 Fed. Reg. 60,606 (Sept. 29, 2011)

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(codified at 50 C.F.R. pt. 648 (2013)) (A.R. 5197- 213) (the " Omnibus Amendment" ), violates the Magnuson--Stevens Fishery Conservation and Management Act (" MSA" ), the National Environmental Policy Act (" NEPA" ), and the Administrative Procedure Act (" APA" ). The Court has allowed the Fisheries Survival Fund (" FSF" ) to join the suit as Intervenor--Defendant.

This matter is now before the Court on the parties' cross-motions for summary judgment. For the reasons set forth below, the Court denies Oceana's motion for summary judgment and grants Defendants' motions for summary judgment.


A. Statutory Background

1. The Magnuson--Stevens Act

In 1976, in balancing the environmental interests in preventing overfishing and the loss of marine habitat against the often competing economic interests of the United States' fishing industry, Congress enacted the Magnuson--Stevens Fishery Conservation and Management Act, Pub. L. No. 94-265, 90 Stat. 331 (1976) (codified as amended at 16 U.S.C. § § 1801 et seq. (2012)). The MSA established eight regional councils (the " Councils" ), which are charged with the duty of drafting fishery management plans (" FMPs" ) for each fishery under their control. See 16 U.S.C. § 1852(a)(1), (h)(1) (2012).

The required components of FMPs are set forth in Section 1853(a) of the MSA. See id. § 1853(a). FMPs proposed by the Councils, and any regulations promulgated to implement FMPs, must also be consistent with the MSA's ten " National Standards" for fishery conservation and management. See id. § 1851(a). The MSA requires that the Secretary of Commerce establish advisory guidelines (the " Guidelines" ) to assist in the development of FMPs based on the National Standards, but provides that the Guidelines do not have the force of law. See id. § 1851(b). NMFS has promulgated a set of Guidelines interpreting the ten National Standards, and has amended the Guidelines over time to keep pace with various changes to the MSA itself. See 50 C.F.R. § § 600.305-.355 (2013); see also, e.g., NS1 Guidelines Final Rule, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified as amended at 50 C.F.R. pt. 600 (2013)) (A.R. 102-38) (revising the Guidelines based on the 2007 amendments to the MSA).

In 2007, Congress amended the MSA by enacting the Magnuson--Stevens Fishery Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, 120 Stat. 3575 (2007) (" MSRA" ). The amendment included a new required provision for all FMPs, mandating that FMPs " establish a mechanism for specifying annual catch limits . . . at such a level that overfishing does not occur in the fishery, including measures to ensure accountability." See id. sec. 303(a), § 104(a)(10), 120 Stat. at 3584 (codified at 16 U.S.C. § 1853(a)(15)). " Overfishing" is defined in the MSA as " a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." 16 U.S.C. § 1802(34) (2012). Maximum sustainable yield (" MSY" ), in turn, is " the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological, environmental conditions . . . ." 50 C.F.R. § 600.310(e)(1)(i)(A). Congress mandated that NMFS comply with the new requirement by fishing year 2010 for fisheries that were subject to overfishing, and by fishing year 2011 for all other fisheries. See MSRA § 104(b), 120 Stat. at 3584 (codified at 16 U.S.C. § 1853 note).

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Before bringing the FMPs themselves into compliance with the MSA's new requirements, NMFS first updated the Guidelines to set forth the Secretary's interpretation of the new requirements in light of the National Standards. Most of the regulations relevant to the instant dispute relate to National Standard 1 (" NS1" ), which provides that " [c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, optimum yield from each fishery for the United States fishing industry." 16 U.S.C. § 1851(a)(1). Optimum yield (" OY" ) is defined as the amount of fish that " will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems . . . ." Id. § 1802(33)(A). OY is less than or equal to the MSY. See 50 C.F.R. § 600.310(b)(2)(i).

As amended, the NS1 Guidelines set forth an overview of the components the Councils must, should, or may apply in complying with the MSA's new mandate. According to the NS1 Guidelines, the overfishing limit (" OFL" ) for a given stock is " an estimate of the catch level above which overfishing is occurring." Id. § 600.310(e)(2)(i)(D). It is set by first determining the annual rate of fishing mortality above which overfishing will occur for a particular stock, known as the maximum fishing mortality threshold (" MFMT" ), see id. § 600.310(e)(2)(i)(C), and then applying the MFMT to the stock's total size, see id. § 600.310(e)(2)(i)(D). To serve the goal of preventing the OFL from being exceeded, the Guidelines provide for the computation of acceptable biological catch (" ABC" ), which is a reduced version of the OFL that accounts for scientific uncertainty in the estimation of the OFL. See id. § 600.310(f)(2)(ii). " Examples of scientific uncertainty include uncertainty in the estimates of MFMT and biomass." Id. § 600.310(f)(1).

At the center of this regime is the annual catch limit (" ACL" ), which is a level of annual catch at or below the stock's ABC. See id. § 600.310(f)(2)(iv). The ACL is enforced by accountability measures (" AMs" ), which are in-season and post-season measures to prevent the ACL from being exceeded, or to initiate corrective measures in the event that ACL is exceeded in a given fishing year. See id. § 600.310(g). FMPs must contain ACLs and AMs for all managed stocks of fish in the fishery. See id. § 600.310(c), (h).

Another important component of fishery management is the problem of " bycatch" --that is, " fish which are harvested in a fishery, but which are not sold or kept for personal use . . . ." 16 U.S.C. § 1802(2). Under the Sustainable Fisheries Act, Pub. L. No. 104-297, 110 Stat. 3559 (1996), an earlier amendment to the MSA, NMFS was required to " establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery . . . ." Id. sec. 303(a), § 108(a)(7), 110 Stat. at 3575 (codified at 16 U.S.C. § 1853(a)(11)). NMFS most recently amended the Northeast region's standardized bycatch reporting methodology in an omnibus amendment, see Northeast Region Standardized Bycatch Reporting Methodology Omnibus Amendment, 73 Fed. Reg. 4736 (Jan. 28, 2008) (codified at 50 C.F.R. pt. 648 (2013)) (the " SBRM Amendment" ), but the D.C. Circuit ordered that the regulation be vacated and remanded. See Oceana, Inc. v. Locke, 670 F.3d 1238, 399 U.S. App. D.C. 308 (D.C. Cir. 2011). NMFS is still in the rulemaking process on remand. See Notice and Request for Comments, 78 Fed. Reg. 69,391 (Nov. 19, 2013).

When a Council proposes an FMP or an amendment to an FMP, the proposal is

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submitted to the Secretary of Commerce, who must approve, disapprove, or partially approve the proposal. See 16 U.S.C. § 1854(a)(3) (2012). In practice, the Secretary exercises her authority through NMFS, a division of NOAA within the Department of Commerce. See Fed. Defs.' Mot. Summ. J. 3, ECF No. 38.

FMPs are subject to judicial review under Section 706 of the APA. See 16 U.S.C. § 1855(f)(1) (2012).

2. The National Environmental Policy Act

The National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at scattered sections of U.S.C.), 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) (2006). FMPs and their amendments are considered major federal actions sufficient to trigger NEPA. See, e.g., Conservation Law Found. 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." Oceana, Inc. v. Locke, 831 F.Supp.2d 95, 101 (D.D.C. 2011) (citing 40 C.F.R. § 1501.4(a)--(b)). The most detailed level of documentation, an environmental impact statement (" EIS" ), is required for projects that significantly affect the environment. See id. (citing 42 U.S.C. § 4332(C) and 40 C.F.R. § 1508.11).

To determine whether an EIS is required, the agency must first prepare an environmental assessment (" EA" ), which provides evidence for determining whether there is sufficient environmental impact to trigger an EIS, or whether there is a finding of no significant impact (" FONSI" ). See Mineta, 131 F.Supp.2d at 22 (citing 40 C.F.R. § § 1501.3, 1508.9(a)). Following the EA, the agency either prepares an EIS or issues a FONSI report setting forth the reasons why the proposed action will not significantly impact the environment. See id. In either case, the agency must also consider alternatives to the proposed action. See id.

An agency's compliance with NEPA is reviewable under Section 706 of the APA. See Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 90, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).

B. The Omnibus Amendment

After NMFS updated the NS1 Guidelines to address the new requirements for ACLs and AMs set forth in the MSA amendment, the Mid-Atlantic Council drafted the Omnibus Amendment, which updates the FMPs for the six existing fisheries under the Council's jurisdiction: the Atlantic Mackerel, Squids, and Butterfish Fishery; the Atlantic Bluefish Fishery; the Spiny Dogfish Fishery; the Summer Flounder, Scup, and Black Sea Bass Fishery; the Surfclam and Ocean Quahog Fishery; and the Tilefish Fishery. See generally Omnibus Amendment, 76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013)) (A.R. 5197-213). On March 24, 2009, NMFS published a notice of intent, indicating that it was considering amendments to the six FMPs due to the new ACL and AM requirements. See Notice, 74 Fed. Reg. 12,314 (Mar. 24, 2009) (A.R. 172-74). After a round of scoping meetings, the Council drafted the Omnibus Amendment and submitted it to the Secretary, and in May 2011, NMFS published a notice in the Federal Register soliciting input on the Omnibus Amendment. See Request for Comments, 76 Fed. Reg. 29,717 (May 23, 2011) (A.R. 4663-64). The proposed rule was published on June 17, 2011, and the agency accepted public comment through July 22, 2011.

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See Proposed Rule, 76 Fed. Reg. 35,578 (June 17, 2011) (A.R. 4671- 711). Initially, the agency was going to conduct an EIS, but it then changed the level of NEPA analysis to an EA. See Notice of Intent, 75 Fed. Reg. 11,129 (Mar. 10, 2010) (A.R. 1920-21). The agency then released a final EA that concluded with a FONSI. See A.R. 4754-5046. NMFS published the final Omnibus Amendment on September 29, 2011. See Omnibus Amendment, 76 Fed. Reg. at 60,606 (A.R. 5197).

The Omnibus Amendment sets ACLs and catch targets using a system of buffers. As noted above, the OFL is reduced to ABC to account for scientific uncertainty, and the Omnibus Amendment contains " ABC control rules" delineating the method for computing the necessary reduction. See 50 C.F.R. § 648.20 (2013). The ACL for each managed stock is then set equal to the stock's ABC, except that for some stocks the ACL is apportioned into sector-ACLs, with separate catch limits for the commercial and recreational sectors. See Omnibus Amendment, 76 Fed. Reg. at 60,607 (A.R. 5198) (" The Council will recommend to NMFS ACLs set equal to ABC for all species, with some further subdivision to sector-level ACLs where stocks have preexisting allocations for both commercial and recreational fisheries. The sum of these sector ACLs will be equal to the ABC." ).

Although the ACL and ABC are equal under the Omnibus Amendment, the new regulatory scheme sets its target at an even lower figure in order to account for management uncertainty in the collection of data. This reduced figure is called an annual catch target (" ACT" ), and is one type of AM established within the Omnibus Amendment to prevent the ACL from being exceeded. See id. (" Council staff . . . will review available information and recommend to the Council the amount of reduction from ACL to ACT necessary to address management uncertainty." ). The ACTs are set in the first instance by committees, which propose specific ACTs to the Council and identify the specific sources of management uncertainty accounted for in their proposal. See 50 C.F.R. § § 648.22, .71, .101, .121, .141, .161, .231, .291 (2013). " Management uncertainty may include late catch reporting, misreporting, and underreporting of catches and is affected by a fishery's ability to control actual catch." Id. § 600.310(f)(1).

One specific source of management uncertainty is the counting of bycatch, which under the Omnibus Amendment is estimated after each fishing year rather than counted in near real time during the season. See Omnibus Amendment, 76 Fed. Reg. at 60,612 (A.R. 5203) (" The monitoring committees will consider the estimated discards for a given specification period . . . and recommend any necessary reductions for uncertainty associated with discard performance to the Council to establish ACT(s)." ). The Omnibus Amendment does not itself purport to establish a methodology for reporting bycatch, and therefore relies largely on the methodology set forth in the SBRM Amendment. The Omnibus Amendment, however, is not completely tied to the SBRM Amendment, as it authorizes the committees to make " [c]hanges, as appropriate, to the Northeast Region SBRM, including the coefficient of variation (CV) based performance standard, fishery stratification, and/or reports[,]" as part of the AMs for each FMP. Id. at 60,617 (A.R. 5208).

The Secretary did not disapprove of the Omnibus Amendment, and the rules went into effect on October 31, 2011. See id. at 60,606 (A.R. 5197).

C. Procedural History

On October 28, 2011, approximately one month after the ...

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