United States District Court, D. Columbia
[Copyrighted Material Omitted]
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.
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.
Kessler, United States District Judge.
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.
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.
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.
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, a division within the Department of
Commerce. See 16 U.S.C. § § 1853-1854.
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
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).
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).
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).
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).
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.
National Environmental Policy Act
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.
Shad and River Herring
center of this case are four species of anadromous fish, that
is, fish that
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.
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.
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.
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
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.
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.
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
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.
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.
Mackerel, Squid and Butterfish Fishery Management Plan
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.
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.
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.
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.
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.
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.
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.
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.
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