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Anglers Conservation Network v. Pritzker

United States District Court, D. Columbia

October 5, 2015

ANGLERS CONSERVATION NETWORK, et al., Plaintiffs,
v.
PENNY PRITZKER, et al., Defendants

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[Copyrighted Material Omitted]

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          For ANGLERS CONSERVATION NETWORK, PAUL EIDMAN, GATEWAY STRIPER CLUB, INC., PHILIP LOFGREN, Plaintiffs: Roger M. Fleming, LEAD ATTORNEY, EARTHJUSTICE, Hallowell, ME; Erica A. Fuller, EARTHJUSTICE, Ipswich, MA; Stephen Elston Roady, EARTHJUSTICE, Washington, DC.

         For PENNY SUE PRITZKER, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, Defendants: John B. Grosko, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT AND NATURAL RESOURCE, Washignton, DC; John S. Most, DEPARTMENT OF JUSTICE, Land & Natural Resources Div., Washington, DC.

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         MEMORANDUM OPINION

         Gladys Kessler, United States District Judge.

         Plaintiffs Anglers Conservation Network, Paul Eidman, Gateway Striper Club, Inc., and Philip Lofgren (collectively, " Plaintiffs" ), bring this case against Secretary of the Department of Commerce Penny Pritzker (''the Secretary" ), the National Oceanic and Atmospheric Administration (" NOAA" ), and the National Marine Fisheries Service (" NMFS" ) (collectively, " Defendants" or " the Government" ) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (" MSA" or " the Act" ), 16 U.S.C. § § 1801 et seq.; the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321 et seq. ; and the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701 et seq.

         Plaintiffs challenge various elements of a Rule that Defendants promulgated amending the fishery management plan governing the Mackerel, Squid, and Butterfish (" MSB" ) fishery off of the eastern coast of the United States. Specifically, Plaintiffs contend that Defendants unlawfully failed: (1) to include four species of river herring and shad as " stocks" to be regulated by the MSB fishery management plan; (2) to adopt observation measures necessary to prevent overfishing of the relevant river herring and shad species; and (3) to adequately consider the environmental impact of its chosen course.

         This matter is before the Court on Plaintiffs' and Defendants' Cross-Motions for Summary Judgment [Dkt. Nos. 30, 31]. Upon consideration of the Motions, Oppositions [Dkt. Nos. 32, 36], Replies [Dkt. Nos. 36, 38], and the entire record herein, and for the reasons set forth below, the Motions for Summary Judgment filed by the Parties shall be granted in part and denied in part.

         I. BACKGROUND

         A. Statutory Background

         1. Magnuson-Stevens Act

         Congress first enacted the MSA in 197 6 " to take immediate action to conserve and manage the fishery resources found off the coasts of the United States[.]" 16 U.S.C. § 1801(b)(1). The Act establishes a federal-regional framework " for the conservation and management of the fishery resources of the United States" in order to " prevent overfishing," " rebuild overfished stocks," " [e]nsure conservation," and " facilitate long-term protection of essential fish habitats." Id. § 1801(a)(6); see also Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 749, 341 U.S.App.D.C. 119 (D.C. Cir. 2000). Regulation of fisheries is accomplished through fishery management plans (" FMPs" ) that are developed and prepared by independent regional fishery management councils (" councils" ) and approved, implemented and enforced by NMFS,[1] a division within the Department of Commerce. See 16 U.S.C. § § 1853-1854.

         The MSA divides the United States into eight regions, each of which is represented by an independent fishery management council. See id. § 1852(a)(1). Councils are composed primarily of members who represent the interests of the states included in their region and who are appointed by the Secretary from a list of individuals submitted by the governor of each constituent state. Id. § 1852(b)(1), (2); see also C & W Fish Co. v. Fox, Jr., 931 F.2d 1556, 1557-58, 289 U.S.App.D.C. 323 (D.C. Cir. 1991). The remaining voting members of each

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council consist of the principal marine fishery management officials from each constituent state and the regional director of NMFS for the related geographic area. 16 U.S.C. § 1852(b)(1)(A), (B).

         Each council is required to prepare and submit to the Secretary (acting through NMFS) a fishery management plan and any necessary amendments to such plan, " for each fishery under its authority that requires conservation and management[.]" Id. § 1852(h)(1). The term " fishery" is defined in the Act as " one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and [] any fishing for such stocks." Id. § 1802 (13). The term " stock of fish," in turn, is defined as " a species, subspecies, geographical grouping, or other category of fish capable of management as a unit." 16 U.S.C. § 1802(42).

         A fishery management plan must describe the species of fish involved in the fishery and specify the " 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), (2).

         After a council prepares and approves a fishery management plan or amendment, it is sent to NMFS, which reviews it for consistency with the MSA and other applicable laws and publishes it in the Federal Register for notice and comment. Id. § 1854(a)(1). After a 60-day notice and comment period, NMFS must " approve, disapprove, or partially approve a plan or amendment [,] " taking into account the views and comments of interested persons. Id. § 1854 (a) (2), (3).

         If NMFS approves a plan or amendment, or does not expressly disapprove it within 30 days, it becomes effective. Id. § 1854(a)(3). If NMFS disapproves or partially approves the plan or amendment, NMFS must thereafter notify the council of " the applicable law with which the plan or amendment is inconsistent" ; the " nature of such inconsistencies" ; and specific " actions that could be taken by the Council to conform such plan or amendment to the requirements of applicable law." Id. § 1854(a)(3). The council " may" thereafter " submit a revised plan or amendment to the Secretary for review [.]" Id. § 1854(a)(4).

         2. National Environmental Policy Act

         Congress enacted NEPA in order " to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may . . . fulfill the responsibilities of each generation as trustee of the environment for succeeding generations." 42 U.S.C. § 4331(b). To accomplish that goal, NEPA requires all federal agencies to prepare an Environmental Impact Statement (" EIS" ) whenever they propose " major Federal actions significantly affecting the quality of the human environment." Id. § 4332(2) (C). The EIS must " present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public." 40 C.F.R. § 1502.14.

         B. Factual Background[2]

         1. Shad and River Herring

         At the center of this case are four species of anadromous fish, that is, fish that

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spend most of their lives in ocean waters but migrate upstream to fresh water in the spring to spawn. See AR 11408. Anadromous fish play a critical role in the biology of rivers, estuaries and ocean waters along the Atlantic seaboard as prey for many species of fish, birds, and marine mammals. AR 8265, 8268, 8291, 8416, 12818, 12947, 13498.

         Two of the four species at issue in this case are known as river herring. They are: Alewife (alosa pseudoharengus), which are most abundant in the Mid-Atlantic and Northeastern states, and blueback herring (alosa aestivalis), which are found from Nova Scotia to northern Florida and are most abundant in waters south of the Chesapeake Bay. AR 1148. Alewife spawn in rivers, creeks, lakes, and ponds over rocks, detritus, submerged aquatic vegetation, and sand. Id. Blueback herring generally prefer to spawn over sand or gravel in swift-flowing areas of rivers and tributaries. Id.

         The other two species are known as shad. They are: American Shad (alosa sapidissima), which historically populated all major North American rivers from Maine to the east coast of Florida. AR 11201, 11411. American shad stocks are river-specific, which is to say that each major tributary along the Atlantic coast provides the spawning area for a particular stock of American shad. Id. The other species is Hickory Shad (alosa mediocris) of which less is known. " [D]istribution and movements of hickory shad are essentially unknown after they return to the ocean" ; however, " due to harvest along the southern New England coast in the summer and fall it is assumed that they also follow a migratory pattern similar to the American shad[.]" AR 11411.

         The Administrative Record is not entirely clear as to the current status of the shad and river herring. Portions indicate that the four species are relatively numerous, whereas others show diminishing numbers. Compare 78 Fed.Reg. 48,944, 48,992 with AR 10438.

         For example, in May 2012 the Atlantic States Marine Fisheries Commission (" ASMFC" ) performed an assessment of 52 stocks of alewife and blueback herring. AR 12921. However, the ASMFC lacked sufficient data to develop estimates of abundance and fishing mortality for 28 of the 52 stocks. Id. Of the 24 stocks for which data were available, 23 were depleted relative to historic levels and one stock was increasing. Id.

         By contrast, in 2013, relying on the blueback herring's coast-wide population growth rate, NMFS concluded that the relative abundance of blueback herring throughout its range is stable. 78 Fed.Reg. 48,944, 48,992. Moreover, there are at least three contiguous populations of alewife that are either stable or significantly increasing. Id. From a coast-wide perspective, the trajectory of the alewife population is significantly increasing and all of the stock complexes are stable or significantly increasing. Id.

         On August 12, 2013, NMFS issued a 50-page decision finding that listing river herring (i.e., both alewife and blueback herring) as threatened or endangered under the Endangered Species Act (" ESA" ) was not warranted. See 78 Fed.Reg. 48,944.

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NMFS determined that neither species of river herring was in danger of extinction or likely to become so for the foreseeable future to 2030. Supp. AR, 78 Fed.Reg. at 48,993.

         The pattern of mixed and limited data continues with both species of shad. In 2012, the Mid-Atlantic Fisheries Management Council (" the Council" ) set out to study 32 stocks of American and hickory shad. AR 12924. The Council found that it lacked sufficient information to make any conclusions about eight of the 32 stocks. Id. However, it was 'able to conclude that 11 stocks were depleted relative to historic levels, 2 were increasing, and 11 were stable. Id. The lack of adequate data has prevented any reliable assessments of the stock abundance and fishing mortality of shad. AR 8567, 8805, 9227.

         2. Mackerel, Squid and Butterfish Fishery Management Plan

         The Mid-Atlantic Fisheries Management Council established the Atlantic Mackerel, Squid and Butterfish Fishery Management Plan in 1983. The Council manages these three species as a single unit because of their similarities in fishing seasons and vulnerability to common threats, including the threat of by-catch from foreign fleets. River herring (alewife and blueback herring) and shad (American shad and hickory shad) are anadromous species that co-occur seasonally with mackerel; fishermen harvest them as incidental catch in the mackerel fishery. 79 Fed.Reg. 10,031 (Feb. 24, 2014). When river herring and shad are encountered in the mackerel fishery, they are either discarded at sea (" bycatch" ) or retained and sold as part of the mackerel catch (" incidental catch" ). Id.; see also AR 11404.

         a. Amendment 14

         In June 2010, the Mid-Atlantic Fisheries Management Council published a notice of intent to prepare a new amendment to the MSB fishery management plan (" MSB FMP" ), known as Amendment 14. 75 Fed.Reg. 32,745; see also 79 Fed.Reg. 10,029 (Feb. 24, 2014). In the initial stages of considering the alternative measures that might be included in Amendment 14, the Council set out to do the following: " 1) improve monitoring and observing of incidental [river herring and shad] catch; 2) consider ways to reduce [river herring and shad] catch; and 3) consider adding [river herring and shad] as managed stocks in the MSB FMP (i.e. as stocks in the fishery) so as to improve overall [river herring and shad] conservation." AR 8191.

         First, as part of Amendment 14, the Council and NMFS implemented new measures that are intended to minimize herring/shad bycatch mortality in the mackerel fishery, and improve the precision of the Council and NMFS's estimates of herring/shad catch and bycatch. After a public comment period, NMFS partially approved Amendment 14, on November 7, 2013. 79 Fed.Reg. at 10,029, 10,031. Amendment 14 established a mortality cap measure for the herring/shad in the mackerel fishery. The cap requires the mackerel fishery to close once NMFS has determined that the mackerel fishery has caused a certain amount of herring/shad mortality. Id. The Council and NMFS reasoned that capping the allowed level of river herring and shad catch in the mackerel fishery would provide a strong incentive for the industry to continue to avoid river herring and shad, and minimize encounters with and therefore reduce the bycatch of these species. Id.

         Second, Amendment 14 also set forth several measures NMFS intends to initiate in the future to reduce herring/shad bycatch and bycatch mortality, including the development of a " bycatch avoidance strategy" with state and university partners. 79 Fed.Reg. 10,029, 10,034.

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          In addition, Amendment 14 requires 48-hour pre-trip notification of intent to retain more than 20,000 pounds of mackerel. Id. Such notification is required to ensure that the Council and NMFS have sufficient notice to assign observers to the fishing vessels. Id. The notification also requires daily catch reporting for certain mackerel vessels via the Vessel Monitoring System in order to facilitate monitoring and cross-checking with other data sources. Id.

         The Amendment also requires six-hour pre-landing notification via the Vessel Monitoring System to land over 20,000 pounds of mackerel to allow sufficient notice to facilitate at-sea monitoring, enforcement, and portside monitoring. Id. The Amendment expands requirements related to at-sea observer sampling to help ensure safe sampling and improve data quality. The Amendment prohibits slippage (i.e., at sea dumping of fish that have been caught) on limited access mackerel trips with observers aboard, and requires vessel operators to submit a released catch affidavit for each slippage event. Id.

         Notably, and at the heart of this case, the final version of Amendment 14 promulgated by NMFS did not include two measures that Plaintiffs support. First, the Council recommended a version of Amendment 14 that would have increased the number of on-board observers who monitor compliance with applicable law. AR 12799. As proposed by the Council, observers would have been on 100% of certain vessels in the MSB fishery and would have been partially funded by the fishing industry itself. Id. For a variety of reasons discussed below, NMFS rejected this measure in the final version of Amendment 14. 79 Fed.Reg. 10,034.

         Second, the Council decided not to recommend the addition of herring/shad stocks to the MSB fishery in Amendment 14. 79 Fed.Reg. 10,034. Instead, the Council stated that it would further consider adding stocks to the fishery in the subsequent Amendment 15. Id.

         b. Amendment 15

         On June 14, 2012, Defendants and the Council initiated Amendment 15 " to add [river herring and shad] as stocks in the fishery," AR 10444, and scoping for the action began in October 2012. 77 Fed.Reg. 65,867. Numerous fishermen and other stakeholders commented on the need to add river herring and shad to the MSB FMP. AR 13789. On October 8, 2013, after studying the issue and considering public comments and testimony, the Council suspended further consideration of Amendment 15, and instead created a new working group to further study the issue for at least three years. 79 Fed.Reg. 10,034. Plaintiffs challenged the termination of Amendment 15, and this Court granted Defendants' Motion to Dismiss that challenge on September 30, 2014. Anglers Conservation Network v. Pritzker, 70 F.Supp.3d 427, 441 (D.D.C. 2014).

         C.Procedural ...


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