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Natural Resources Defense Council v. National Marine Fisheries Service

United States District Court, D. Columbia.

October 14, 2014

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE, et al., Defendants

Page 36

For NATURAL RESOURCES DEFENSE COUNCIL, Plaintiff: David Newman, LEAD ATTORNEY, PRO HAC VICE, NATURAL RESOURCES DEFENSE COUNCIL, INC, New York, NY; Michael E. Wall, LEAD ATTORNEY, PRO HAC VICE, NATURAL RESOURCES DEFENSE COUNCIL, Chicago, IL; Aaron S. Colangelo, NATURAL RESOURCES DEFENSE COUNCIL, Washington, DC.

For OCEAN CONSERVANCY, Plaintiff: Andrew E. Hartsig, LEAD ATTORNEY, PRO HAC VICE, OCEAN CONSERVANCY, Anchorage, AK David Newman, LEAD ATTORNEY, PRO HAC VICE, NATURAL RESOURCES DEFENSE COUNCIL, INC, New York, NY; Ivy Fredrickson, LEAD ATTORNEY, PRO HAC VICE, OCEAN CONSERVANCY, Washington, DC; Michael E. Wall, LEAD ATTORNEY, PRO HAC VICE, NATURAL RESOURCES DEFENSE COUNCIL, Chicago, IL; Aaron S. Colangelo, NATURAL RESOURCES DEFENSE COUNCIL, Washington, DC.

For NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE, JOHN E. BRYSON IN HIS OFFICIAL CAPACITY AS U.S. SECRETARY OF COMMERCE, Defendants: Kevin W. McArdle, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment & National Resources Division, Washington, DC.

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MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge.

The federal government has been gravely concerned about the depletion of fish in the waterways off the coast of the United States as a result of fishing activity since at least the mid-1970s, when Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act. Pub. L. No. 94-265, 90 Stat. 352 (1976) (codified as amended at 16 U.S.C. § 1801 et seq. (2012)). The Magnuson-Stevens

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Act seeks to " promote domestic commercial and recreational fishing" while employing " sound conservation and management principles" in order to ensure " the optimum yield from each fishery." Id. § 1801(b)(3)-(4). The instant case arises from an attempt by the National Marine Fisheries Service (" NMFS" ) to pursue the twin aims of the Magnuson-Stevens Act in relation to the speckled hind and the warsaw grouper--two species of fish tat live in the deep waters of the Atlantic Ocean and that are especially vulnerable to being " subjected to a level of fishing mortality" that threatens the capacity of each stock to replenish its population levels. 50 C.F.R. § 600.310(e)(2)(i)(B) (describing this phenomenon and labeling it " overfishing" ).

In December of 2010, the NMFS promulgated a regulation that banned outright the catching and retention of speckled hind and warsaw grouper, which had been listed as undergoing overfishing since 1997. In addition, because scientific research suggested that these particular stocks of fish would nevertheless continue to be endangered as a result of their accidental or incidental catch when fishermen in the region targeted other deep water species (a circumstance known as " bycatch" ), the NMFS also prohibited the targeting of six other species of fish that the NMFS then believed " co-occurred" ( i.e., lived) with the speckled hind and the warsaw grouper in certain deep water areas of the South Atlantic Snapper-Grouper Fishery. In May of 2012, the NMFS reconsidered its co-occurrence findings and reversed course, enacting Regulatory Amendment 11, which lifted the prohibition related to the targeting of the six other deep water stocks. Plaintiffs Natural Resources Defense Council and Ocean Conservancy (" Plaintiffs" )--nonprofit environmental protection organizations that strenuously object to the NMFS's change in policy--have filed this action against the NMFS, the National Oceanic and Atmospheric Administration (" NOAA" ), the Department of Commerce, and the Secretary of the Department of Commerce (collectively, " Defendants" ) to challenge Regulatory Amendment 11 on the grounds that it violates the Administrative Procedure Act (" APA" ), 5 U.S.C. § 500 et seq., as well as the Magnuson-Stevens Act itself.

Before this Court at present are the parties' cross motions for summary judgment. Plaintiffs assert that the undisputed administrative record establishes that the NMFS lifted the six-stock deep water prohibition largely due to pressure from fishing communities that stood to profit greatly if fishing for the six other species was permitted once again; thus, according to Plaintiffs, Regulatory Amendment 11 was arbitrary and improper. Defendants maintain that, although economic considerations did factor into the agency's decision, NMFS's primary reason for lifting the prohibition was its reasonable and well-supported determination that because the six stocks of fish do not, in fact, co-occur with speckled hind and warsaw grouper, the six-stock deep water prohibition was an ineffective conservation measure.

On September 30, 2014, this Court issued an Order announcing that Plaintiffs' motion for summary judgment is DENIED and Defendants' cross-motion for summary judgment is GRANTED. (Order, ECF No. 46.) In the instant Memorandum Opinion, the Court explains the reasoning behind that ruling. In short, after reviewing the record and the parties' submissions and hearing oral argument on the motions, this Court has determined that the NMFS adopted Regulatory Amendment 11 based on a reasonable analysis of the available data and that the agency sufficiently explained its change in policy. Moreover, it is clear to this Court that the NMFS's conclusion that the six-stock deep water prohibition should be repealed is not inconsistent

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with the tenets of the Magnuson-Stevens Act.

I. BACKGROUND

Plaintiffs' challenge to Regulatory Amendment 11 arises out of the " complicated statutory and regulatory system governing [] federal fisheries." Lovgren v. Locke, 701 F.3d 5, 13 (1st Cir. 2012).[1] A brief description of the federal fishery management scheme is warranted, because a basic understanding of the applicable laws and regulations--and, in particular, how such federal restrictions on fishing activity are developed and adopted--is necessary for full comprehension of the NMFS action that is being challenged here.

A. The Federal Fishery Management System

Congress enacted the Magnuson-Stevens Act in 1976 to address the combination of increased fishing activity in certain coastal areas (known as " fishing pressure" ), habitat losses, and inadequate conservation and management practices that threatened the survival of certain stocks of fish. See 16 U.S.C. § 1801(a)(2).[2] When it amended the Magnuson-Stevens Act in 2006, Congress reiterated its intent to continue to " conserve and manage [U.S.] fishery resources," and to " promote domestic commercial and recreational fishing under sound conservation and management principles." Id. § 1801(b)(1)-(3); see also NRDC v. Nat'l Marine Fisheries Serv., 421 F.3d 872, 879 (9th Cir. 2005) (" The Act sets this priority in part because the longer-term economic interests of fishing communities are aligned with the conservation goals set forth in the Act. Without immediate efforts at rebuilding depleted fisheries, the very long-term survival of those fishing communities is in doubt." ) (citations omitted).[3]

To accomplish these goals, the Magnuson-Stevens Act defined a federal fisheries conservation zone that extends between three nautical miles and two hundred nautical miles off the coast of the United States. Within this zone, federal authorities

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administer a fishing conservation and management program designed to prevent overfishing and to rebuild depleted stocks. This conservation and management program is developed through the cooperation of local, state, and federal government officials, and also other major stakeholders, including members of the commercial and recreational fishing industries and environmental and consumer organizations. Id. § § 1801(b)(5); id. § 1852(b)(1)-(2). Because members of Congress tended to believe that " [t]he demise of the United States fisheries in the past is more accurately attributable to non management rather than to mis management," the Magnuson-Stevens Act was specifically designed to offer the federal government " the tools for truly effective management" of the fishing activity in our nation's coastal waters. Warren G. Magnuson, The Fishery Conservation and Management Act of 1976: First Step toward Improved Management of Marine Fisheries, 52 Wash. L.Rev. 427, 428 (1976-1977) (emphasis added).

Under the Magnuson-Stevens Act, Congress has designated the Secretary of Commerce as the manager of the fishery conservation and management program but in practice, the Secretary delegates his authority to the NMFS, which is a sub-agency of the NOAA within the Department of Commerce. See N.C. Fisheries Ass'n v. Gutierrez, 518 F.Supp.2d 62, 70-71 (D.D.C. 2007); Flaherty v. Bryson, 850 F.Supp.2d 38, 43 n.2 (D.D.C. 2012); Fishermen's Finest v. Locke, 593 F.3d 886, 889 (9th Cir. 2010). In its role as the manager of the fisheries in America's coastal waters, the NMFS has a number of tools at its disposal.

1. Regional Fishery Management Councils And Fishery Management Plans

The NMFS's most important resource under the Magnuson-Stevens Act is eight " Regional Fishery Management Councils." The Fishery Management Councils are boards that are meant to " reflect the expertise and interest of the several constituent States in the ocean area over which such Council is granted authority." 16 U.S.C. at § 1852(a)(2). Accordingly, the Act requires the Secretary to appoint individuals to the Regional Fishery Management Councils who " by reason of their occupational or other experience, scientific expertise, or training, are knowledgeable regarding the conservation and management, or the commercial or recreational harvest, of the fishery resources of the geographical area concerned." Id. § 1852(b)(2)(A). To meet the goal of broad-based participation by relevant stakeholders, the councils' membership is drawn from the commercial and recreational fishing industries, and also environmental and consumer organizations, in addition to local, state, and federal officials. Id. § § 1801(b)(5), 1852(b)(1)-(2).

The most significant responsibility of the Fishery Management Councils under the Magnuson-Stevens Act is the drafting of " Fishery Management Plans." Id. § 1852(h)(1). Fishery Management Plans include data analyses and management measures for a fishery. Essentially they are recommendations to the Secretary of Commerce on the allocation of resources: the plans describe the environmental and economic status of the fishery and propose conservation and management measures that are " 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). " The ultimate goal [ ] of any [F]ishery [M]anagement [P]lan is to establish measures which achieve a rate or level of fishing

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mortality that allows the fishery to produce the maximum sustainable yield on a continuing basis." A.M.L. Int'l, Inc. v. Daley, 107 F.Supp.2d 90, 93 (D. Mass. 2000) (citing 16 U.S.C. § 1802(29); 50 C.F.R. § 600.310(a)). In other words, Fishery Management Plans set the fishing activity rules for the fishery; if the fishery is overfished, the Fishery Management Plan will limit fishing in a way that allows the fishery to rebuild affected stocks of fish. See 16 U.S.C. § 1854(e)(2).

The Magnuson-Stevens Act mandates that the Regional Fishery Management Councils employ a variety of mechanisms to gather information when developing and updating Fishery Management Plans. Among other things, the Magnuson-Stevens Act instructs Fishery Management Councils to draw on the expertise of " Advisory Panels," which are committees that are meant to represent all those people with a direct interest in the fishery, ranging from environmentalists, to sport fishermen, to members of the fishing industry. Id. § § 1852(g)(2), 1852(g)(3)(B). Furthermore, under the Magnuson-Stevens Act, Fishery Management Councils are required to establish and maintain a Scientific and Statistical Committee (" SSC" ) in order " to assist [the council] in the development, collection, evaluation, and peer review of such statistical, biological, economic, social, and other scientific information as is relevant to such Council's development and amendment of any fishery management plan." Id. § 1852(g)(1)(A). In addition to hearing from these experts, Fishery Management Councils must also conduct public hearings " to allow all interested persons an opportunity to be heard in the development of fishery management plans and amendments to such plans, and with respect to the administration and implementation of the [Magnuson-Stevens Act]." Id. § 1852(h)(3).

2. The NMFS's Rulemaking Process

Once a Fishery Management Council finishes drafting a proposed Fishery Management Plan in consultation with its expert and lay advisors, the Council submits the proposal to the NMFS. Id. § 1852(h)(1); Flaherty, 850 F.Supp.2d at 43. The NMFS, through the Secretary of Commerce, is responsible for the adoption and implementation of the Fishery Management Plans as well as any amendments to such plans. 16 U.S.C. § 1855(d) (" The Secretary shall have general responsibility to carry out any [F]ishery [M]anagement [P]lan or [A]mendment approved or prepared by him, in accordance with the provisions of this chapter." ).[4] Upon receiving a Fishery Management Plan, the NMFS must " immediately" publish notice in the Federal Register soliciting comments on the Plan, see id § 1854(a)(1)(B), and also must " immediately" review the Plan to determine whether it conforms to the standards set forth in the Magnuson-Stevens Act and any other applicable statute, see id. § 1854(a)(1)(A).

With respect to ensuring compliance with the Magnuson-Stevens Act's standards, the NMFS generally determines whether a Fishery Management Plan includes conservation and management measures that are " necessary and appropriate . . . 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). Furthermore, the NMFS is tasked with the responsibility of verifying

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that the Fishery Management Plan satisfies the ten " national standards for fishery conservation and management" (hereinafter, " National Standards" ) that the Magnuson-Stevens Act establishes. See id. § 1851(a). The National Standards mandate that Fishery Management Plans conform to certain enumerated ideals, including the following four principles:

(1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.
(2) Conservation and management shall be based upon the best scientific information available. . . .
(8) Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the preventing of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities . . . in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.
(9) Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.

Id.

Significantly for present purposes, National Standard Eight (quoted above) requires the NMFS to " focus on the welfare of fishing communities," such that " where two alternatives in fact achieve similar conservation goals, the preferred option will be the alternative that provides the greater potential for sustained participation of fishing communities and that minimizes adverse economic impacts." N.C. Fisheries Ass'n, 518 F.Supp.2d at 72, 92. However, National Standard Nine tempers the potentially negative impact on conservation efforts of considering the economic interests of the fishing community by addressing " bycatch" --i.e., the accidental or incidental catching of species that are " harvested in a fishery, but which are not sold or kept for personal use" 16 U.S.C. § 1802(2)--and specifically requires that Fishery Management Plans adopt measures that minimize bycatch " to the extent practicable." Id. § 1851(a)(9).

Notably, although the Magnuson-Stevens Act's National Standards do constitute statutory requirements upon which legal action can be based, " [t]he National Standards do not require any particular outcome with respect to allocations; rather, they provide a framework for the Council's analysis." Fishermen's Finest, 593 F.3d at 896. Put another way, the National Standards are broadly worded statements of Congressional objectives for all fishery conservation and management measures, and the NMFS is " required [ ] to exercise discretion and judgment in balancing" these sometimes conflicting concerns. Alliance Against IFQs v. Brown, 84 F.3d 343, 350 (9th Cir. 1996).

In addition to policing Fishery Management Plans for compliance with the National Standards, the NMFS is also responsible for enforcing other requirements of the Magnuson-Stevens Act with respect to certain specific provisions that, per the statute, must be included in Fishery Management Plans and Amendments. One such provision is particularly relevant to the instant dispute: it obliges all Fishery Management Plans and Amendments to specify " annual catch limits," 50 C.F.R. § 600.310(b)(2)(iii), which are caps on the " level of annual catch of a [particular] stock or stock complex," id. § 600.310(f)(2)(iv). An acceptable annual catch limit provision includes both (1) the

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permissible catch amount for each stock, and (2) " accountability measures" --a term of art that refers to mechanisms for ensuring that the annual catch limit is not exceeded. 50 C.F.R. § 600.310(f)(2)(iv); id. § 600.310(g)(1). Catch limits and accountability measures are required in Fishery Management Plans in order to promote the " optimum yield" from a fishery; that is, the amount of fishing 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[.]" 16 U.S.C. § 1802(33)(A). As explained, the Council is required to include annual catch limits and accountability measures in their Fishery Management Plans, and it is the NMFS's duty to ensure that such plans " implement[ ] regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability." Id. § 1853(a)(15).

During the NMFS's review of any Fishery Management Plan for statutory compliance, the NMFS must " take into account the information, views, and comments received from interested persons." Id. § 1854(a)(2)(A). Within thirty days of the end of the public comment period, the Secretary must " approve, disapprove, or partially approve" the Fishery Management Plan. 16 U.S.C. § 1854(a)(3). If the NMFS disapproves of the Plan, it must send a " written notice to the Council," specifying " (A) the applicable law with which the plan or amendment is inconsistent; (B) the nature of such inconsistencies; and (C) recommendations concerning the actions that could be taken by the Council to conform such [P]lan or [A]mendment to the requirements of applicable law." Id. Conversely, if the NMFS approves of the Plan, the Magnuson-Stevens Act directs the NMFS to implement the Plan through the promulgation of regulations consistent with the Plan. Id. § 1855(d). The Council may also propose and submit language for regulations implementing the Fishery Management Plan along with the Plan itself, in which case, the NMFS will review the proposed regulations for consistency with the Plan and publish those proposed regulations for notice-and-comment before promulgating final regulations. Id. § 1854(b)(1).

It is only after the NMFS promulgates regulations implementing a Fishery Management Plan that the Plan becomes binding on the fishery. That is, the Fishery Management Plans and Amendments that the Regional Fishery Management Councils prepare do not themselves carry the force of law and cannot be challenged until the NMFS enacts regulations to effectuate the proposals. See N.C. Fisheries Ass'n v. Gutierrez, 550 F.3d 16, 17, 384 U.S.App.D.C. 16 (D.C. Cir. 2008). The actions of the NMFS in promulgating regulations to adopt a Fishery Management Plan are subject to judicial review under the APA. See id.

3. Amendments To Fishery Management Plans

" Once [a Fishery Management Plan] has been approved and implemented, continuing management of the subject fishery involves monitoring the fishery, evaluating new information, and adjusting the management program through changes to the [Fishery Management Plan] and/or to its implementing regulations." See EPA, Office of Federal Activities, Final Guidance for Reviewing Environmental Impact Statements for Fishery Management Plans (" EPA Guidance Document" ), TO-0008 for contract 68-W-03-029 (Sept. 2005), at 14. Fishery Management Plans themselves are amended through a process called " formal amendment," while the regulations

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that implement such plans are altered through the " regulatory amendment" process. Id. at 14, 17. Regulatory amendments " must follow normal rulemaking procedures," but take less time to implement than Formal Amendments and are more easily modified. Id. at 17; see also N.C. Fisheries Ass'n, 518 F.Supp.2d at 73 (contrasting " plan amendments" with " more streamlined regulatory amendments" ). Notably, " [a] regulatory amendment may [also] be used to implement a portion of an approved [Fishery Management Plan] or Amendment that was reserved" by the NMFS at the time the Plan or Amendment was adopted. EPA Guidance Document at 17; see also id. (" A regulatory amendment offers considerable time savings over [a Formal] Amendment because future regulatory changes are anticipated within the scope of the [Fishery Management Plan]." ).

The instant case involves both a formal amendment and a regulatory amendment to the South Atlantic Snapper-Grouper Fishery Management Plan.

B. The South Atlantic Snapper-Grouper Fishery

The South Atlantic Snapper-Grouper Fishery (the " Fishery" ) is an area " off the coasts of North Carolina, South Carolina, Georgia, and Florida through the Atlantic side of Key West." (S. A. Fishery Mgmt. Council, Regulatory Amendment 11 to the Management Plan for the Snapper Grouper Fishery of the South Atlantic Region (2011) (" RA 11" ), AR Doc. 86 at 2958).[5] Access to this Fishery " had been open and virtually unlimited prior to 1983," but " conservation measures have vastly increased" during the last three decades, N.C. Fisheries Ass'n, 518 F.Supp.2d at 74; these measures have primarily been adopted and implemented under the Magnuson-Stevens Act, as described above, in the context of the South Atlantic Snapper-Grouper Fishery Management Plan.

Generally speaking, the primary aim of the various conservation restrictions that are in effect in this region is to protect and manage the sixty species of snapper and grouper that make up the Fishery, including eight " deep water" stocks relevant to this dispute: speckled hind, warsaw grouper, blueline tilefish, snowy grouper, yellowedge grouper, misty grouper, queen snapper, and silk snapper. See Comprehensive Annual Catch Limit Am. for the South Atl., 77 Fed.Reg. 15,916 (Mar. 16, 2012). Although these eight stocks carry the deep water label, several of them can also be found in shallower waters. (RA 11, AR Doc. 86 at 2957, 2996.)

Commercial and recreational fisherman seek (i.e., " target" ) each of these eight species in the Fishery to a different degree. The species that is targeted most--by far--is the blueline tilefish, followed by the snowy grouper. ( Id. at 2980-82; Amendment 17B Final Rule, 75 Fed.Reg. 82,280 (Dec. 30, 2010) (" 17B Final Rule" ), AR Doc. 5 at 45-46.) These two stocks often co-occur, meaning that they live in the same habitat within the Fishery and are typically found together. (17B Final Rule, AR Doc. 5 at 46; RA 11, AR Doc. 86

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at 2957, 2967, 2996.)[6] Yellowedge grouper, misty grouper, queen snapper, and silk snapper are not targeted at all, and these species are rarely encountered. (Mem. from Roy E. Crabtree, to Samuel D. Rauch III (Apr. 23, 2012) (" Apr. 2012 Crabtree Mem." ), AR Doc. 192 at 6100; Regulatory Amendment 11 Final Rule (" RA 11 Final Rule" ), 77 Fed.Reg. 27,374 (May 10, 2012), AR Doc. 196 at 6115; Final Appendices to Regulatory Amendment 11 (" Final App. to RA 11" ), AR Doc. 87 at 3078; S. A. Fishery Mgmt. Council, Amendment 17B to the Fishery Managment Plan for the Snapper-Grouper ...


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