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Conservation Law Foundation v. Pritzker

United States District Court, D. Columbia.

April 4, 2014

CONSERVATION LAW FOUNDATION, Plaintiff,
v.
PENNY PRITZKER, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For CONSERVATION LAW FOUNDATION, Plaintiff: Erica A. Fuller, PRO HAC VICE, EARTHJUSTICE, Ipswich, MA; Peter Shelley, PRO HAC VICE, CONSERVATION LAW FOUNDATION, Boston, MA; Roger M. Fleming, PRO HAC VICE, EARTHJUSTICE, Appleton, ME; Stephen Elston Roady, EARTHJUSTICE, Washington, DC.

For NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, PENNY SUE PRITZKER, In her official capacity as Secretary of the Department of Commerce, Defendants: James A. Maysonett, Joseph Thomas Mathews, LEAD ATTORNEYS, Andrea Gelatt, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT & NATURAL RESOURCES DIVISION, Natural Resources Section, Washington, DC.

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MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

This administrative-law dispute illustrates the difficult balance that environmental regulators often must strike between species conservation and economic priorities. The controversy began in 2013, when the New England Fishery Management Council, a federal entity established by the Magnuson-Stevens Act, sought to prevent overfishing in the waters off the coast of the Northeast United States by reducing the allowable annual catch for local fishermen. As one would expect, this reduction put a burden on the region's fishing industry. To ease that burden, the Council promulgated " Framework 48," an adjustment to the relevant Fishery Management Plan, which, among other things, allowed local fishermen to apply for permission to enter areas that had previously been closed to commercial fishing. That provision of Framework 48 is the subject of this litigation.

Conservation Law Foundation, an environmental-advocacy group based in Boston, feared that opening the closed areas to fishing would threaten fish habitats and further degrade the region's ecosystem. It therefore filed this suit against Commerce Secretary Penny Pritzker, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service, challenging their acknowledged decision to trade off long-term environmental health for short-term economic gain. CLF claims that Framework 48's opening of the closed areas violates two different federal statutes. First, the group argues that the Magnuson-Stevens Act and its implementing regulations required Defendants to use a more formal process to open the closed areas and to conduct more intensive analyses on the impact that the openings would have on the particular fishery. Second, CLF contends that the National Environmental Policy Act required Defendants to produce a more detailed environmental analysis before

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they promulgated Framework 48. In response, Defendants maintain that this case is not ripe for review, and that even if it were, they have complied with their obligations under both the MSA and NEPA. Both sides have now cross-moved for summary judgment.

Although CLF makes some interesting arguments, they ultimately fall short. While the Court agrees that the group's MSA claim is ripe, the process Defendants used to promulgate Framework 48 and the supporting analyses were perfectly sufficient under the requirements of that law. CLF's NEPA claim, by contrast, is not yet ripe for review. The Court will therefore grant Defendants' Motion.

I. Background

The regulatory scheme at issue in this case is both technical and complex, and this Court has already had occasion to review it in great detail -- twice. See Oceana, Inc. v. Pritzker, No. 13-770, 26 F.Supp.3d 33, 2014 WL 616599 (D.D.C. Feb. 18, 2014); Oceana, Inc. v. Locke, 831 F.Supp.2d 95 (D.D.C. 2011). In addition, the Court is today issuing an Opinion in a related case, Conservation Law Foundation v. Pritzker, No. 13-820, 37 F.Supp.3d 254, (D.D.C. Apr. 4, 2014). What ensues, therefore, is only a brief overview of the relevant background law, followed by a more focused analysis of the precise legal issues at stake here.

Congress passed the Magnuson-Stevens Act, 16 U.S.C. § 1801 et seq., [1] to address the problem of overfishing in U.S. waters. See Oceana, 2014 WL 616599, at *1. The Act seeks to " balance[] the twin goals of conserving our nation's aquatic resources and allowing U.S. fisheries to thrive," and it assigns this task to the Secretary of Commerce, who in turn has delegated the responsibility to the National Marine Fisheries Service. Id.; see also 16 U.S.C. § § 1801(b), 1802(39). To that end, the Act establishes eight regional Fishery Management Councils, each of which is charged with drawing up Fishery Management Plans to govern the different fisheries under its control. See Oceana, 2014 WL 616599, at *1-2; see also 16 U.S.C. § § 1852(a) & (h). The Councils and the Service can update Plans by adopting either " Amendments, which alter Plans in broad strokes," or " Framework Adjustments, which are expedited changes that modify Plans in more modest ways." Oceana, 2014 WL 616599, at *2 (citing 16 U.S.C. § § 1853(c), 1854(a) & (b) and 50 C.F.R. § 648.90(c)).

This case deals with the Northeast Multispecies Fishery, one of the fisheries managed by the New England Fishery Management Council. See id.; see also 16 U.S.C. § 1852(a)(1)(A). The Northeast Multispecies Fishery Management Plan regulates that region's " groundfish" fishery, which includes species such as cod, haddock, and flounder. See Oceana, 2014 WL 616599, at *2. Prior to 2009, the Plan protected against overfishing though an " 'input-based' management system, meaning [that] it limit[ed] the amount of time vessels spen[t] fishing -- i.e., their 'efforts' to catch fish." Oceana, 831 F.Supp.2d at 102; see also AR 1,292-1,307. In 2009, however, the Council revised the Plan with " Amendment 16," which switched to an " output-based" management system, " hing[ing] not on fishing efforts, but on results -- i.e., the amount of fish caught." Oceana, 831 F.Supp.2d at 102-03; Amendment 16 at 1 (AR 382). Amendment 16 also allowed fishermen to join a " sector," a cooperative group of

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fishing vessels exempt from the input restrictions and subject only to a hard limit on its output -- i.e., the total amount of each stock of fish that it could catch each year. Amendment 16 at 9 (AR 390).

Even after Amendment 16, however, the Plan maintained that certain input restrictions would continue to apply to all fishers, whether or not they joined a sector. One such restriction, at issue in this case, is the limit imposed by the fishery's " year-round closure areas." 50 C.F.R. 648.87(c)(2)(i). In certain " closed" areas of the fishery, fishing is strictly limited or even entirely prohibited. Framework Adjustment 48 at 123 (AR 26,164). Closed areas " protect[] a segment of the [fish] stock" and also " specifically enhance" those " ecosystem and stock characteristics [that] affect groundfish productivity." Framework Adjustment 48 at 363 (AR 26,404). Amendment 16 made clear that while all sectors would be automatically exempt from a range of input restrictions, and while they could apply on a case-by-case basis for special exemptions from others, no sector could request or receive an exemption from certain specifically listed restrictions, first among them the limits on fishing in the closed areas. See Amendment 16 at 118 (AR 499); 50 C.F.R. § 648.87(c)(2)(i). Amendment 16 nevertheless also allowed the list of restrictions for which no exemptions could be given to itself be modified through a subsequent Framework Adjustment. See Amendment 16 at 118 (AR 499); 50 C.F.R. § 648.87(c)(2)(i).

In 2013, the Council took up the sword and promulgated Framework 48, which removed the closed areas from the list of restrictions for which no sector exemptions could be granted. See 78 Fed. Reg. 26,118 (May 3, 2013) (" Framework Adjustment 48 Interim Final Rule" ); 78 Fed. Reg. 53,363 (Aug. 29, 2013) (" Framework Adjustment 48 Final Rule" ). Now, a sector could " request an exemption from the prohibition in fishing in year[-]round closed areas" subject to certain limitations. Framework Adjustment 48 at 60-62 (AR 26,101-03). The Council proposed this change because catch limits for sectors would be reduced in 2013, see Framework Adjustment 48 at 62 (AR 26,103), and it hoped to " provide the industry with additional fishing grounds during a time of low stock allocations." Id. at 8 (AR 26,049). At the same time, the Council acknowledged that this decision " require[d] weighing short-term gains against long-term losses in productivity." Id. at 363 (AR 26,404). Although the Service approved Framework 48, it emphasized that it " must still decide which, if any, exemptions [to the limits on fishing in closed areas] will be granted, and, if granted, whether seasonal, area, gear or other types of limitations are necessary to ensure any exemption will be consistent with . . . the groundfish [Fishery Management Plan] and the Magnuson-Stevens Act." 78 Fed. Reg. at 26,144.

Concerned that opening the closed areas to fishers might spoil those areas and the rest of the fishery, CLF sued, claiming that this aspect of Framework 48 violated the regulatory scheme established by the MSA and NEPA. See 42 U.S.C. § 4321 et seq. CLF has moved and Defendants have cross-moved for summary judgment. The Court now turns to the arguments proffered by each side.

II. Legal Standard

Challenges under the MSA and NEPA proceed under 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); Baltimore Gas and Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); see also Oceana, Inc. v. Locke, 831 F.Supp.2d 95, 106 (D.D.C. 2011).

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 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, MSA, and NEPA 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, 180 U.S.App.D.C. 314 (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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (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. 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, 403 U.S.App.D.C. 388 (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, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974).

III. Analysis

CLF has put forward two main challenges to Framework 48. First, it says that the Framework violates the MSA and its implementing regulations because it makes changes that can only be implemented via Amendment, rather than Framework Adjustment, and because it contains insufficient analyses of the impact that opening the closed areas will have on the fishery's ecosystem. Second, it argues that Defendants failed to perform the environmental analysis NEPA requires in order to undertake these actions. Before the Court addresses either of those issues, however, it must first resolve Defendants' assertions that CLF lacks standing to bring this suit and that its claims are not ripe for review. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (explaining that standing is matter of Article

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III jurisdiction and must be resolved before federal court may reach merits of case). After determining that CLF has standing but only its MSA claim is ripe, the Court ...


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