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Flaherty v. Pritzker

United States District Court, District of Columbia

June 14, 2016

MICHAEL S. FLAHERTY, et al., Plaintiffs,
v.
PENNY PRITZKER, et al., Defendants.

          MEMORANDUM OPINION

          GLADYS KESSLER UNITED STATES DISTRICT JUDGE.

         Plaintiffs Michael S. Flaherty, Captain Alan A. Hastbacka, and the Ocean River Institute bring this suit against Defendants Commerce Secretary Penny Pritzker, the National Oceanic and Atmospheric Administration ("NCAA"), and the National Marine Fisheries Service ("NMFS") (collectively, "Defendants"), as well as Defendant-Intervener Sustainable Fisheries Coalition ("SFC"). Plaintiffs allege that the final rule implementing Framework Adjustment 2 to the Atlantic Herring Fishery Management Plan and the Atlantic Herring Fishery 'Specifications for the 2013-2015 Fishing Years ("2013-2015 Specifications") violates the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), 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. §§ 702 et seq.

         This matter is now before the Court on Cross-Motions for Summary Judgment [Dkt. Nos. 88, 96, & 99] . Upon consideration of the Motions, Oppositions, Replies, the entire record herein, and for the reasons stated below, Plaintiffs' Motion for Summary Judgment is denied, Defendant-Intervenor's Motion for Summary Judgment is denied, and Defendants' Motion for Summary Judgment is granted.

         I. BACKGROUND

         a. Statutory Background

         i. The Magnuson-Stevens Act[1]

         The MSA is designed to conserve and manage fishery resources in U.S. waters and coastal areas. It establishes eight Regional Fishery Management Councils, which are responsible for developing fishery management plans ("FMPs"). 16 U.S.C. §§ 1852. FMPs are required to include the "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). FMPs must also be consistent with the ten National Standards provided for in the MSA, as well as all other provisions of the MSA, and "any other applicable law." Id. § 1853(a)(1)(C); see also id. § 1851 (setting forth National Standards). The Secretary of Commerce, acting through NMFS, is required by the MSA to establish "advisory guidelines" for implementing the National Standards. 16 U.S.C. § 1851(b); see also 50 C.F.R. 600.305 et seq. (National Standards guidelines).

         Once a council has developed a plan, NMFS must review the plan to determine whether it comports with the ten National Standards and other applicable law. Id. § 1854(a)(1)(A)'. Next, after a period of notice and comment, NMFS must "approve, disapprove, or partially approve a plan or amendment, " depending on whether the plan or amendment is consistent with the National Standards and applicable law. Id. § 1854(a)(3). If NMFS approves the plan or does not express disapproval within 3 0 days, the FMP becomes effective. Id. § 1854(a)(3).

         At the beginning of 2007, Congress re-authorized and amended the MSA. Magnuson-Stevens Fishery Conservation' and Management Reauthorization Act of 2006 ("MSRA"), P.L. 109-479, 120 Stat. 3575 (2007). The amended MSA significantly enlarged the duties of the council and NMFS by requiring FMPs to contain mechanisms for setting the limits, termed Annual Catch Limits ("ACLs"), on the amount of fish caught and accountability measures ("AMs") for ensuring compliance with the ACLs. 16 U.S.C. § 1853 (a) (15) . In response to the new requirements, NMFS revised its guidelines for National Standard 1 to provide guidance for interpreting the concepts adopted in the amendment. 74 Fed. Reg. 3178 (January 16, 2009).

         The setting of an ACL involves a multi-step process intended to generate a scientific basis for the final catch limit. The following is an extremely abbreviated overview of what is a very complicated process. 50 C.F.R. § 600.310(f). First, a council must define an overfishing limit ("OFL"), which is, at its most basic, an estimate of the rate of fishing at which a fishery will not be sustainable. Id . § 600.310(e)(1)(i)(A)-(2)(i)(E).

         Second, the council must determine the acceptable biological catch ("ABC"), which is the amount of fish that may be caught without exceeding the OFL, after taking into account scientific uncertainty. Id. § 600.310(f)(2)(ii). In order to set the ABC, the council must first establish an "ABC control rule, " which explains how the council will account for scientific uncertainty when setting the ABC. 50 C.F.R. § 600.310(f)(4). The council must create its ABC control rule based on scientific advice from its Scientific and Statistical Committee ("SSC"). 50 C.F.R. § 600.310(f)(4). The objective of the ABC control rule is to create a buffer between OFL and ABC so that there is a low risk that OFL will be exceeded. See id. §§ 600.310(b) (3), (f) (4) .

         Third, and finally, the council must set the ACL, which is the amount of fish that may be caught without exceeding the ABC, after taking into account management uncertainty, such as late reporting, misreporting, and underreporting of catch. Id. § 600.310(f)(1).

         To summarize, in the process of setting the final ACL, the council must solicit scientific advice from its SSC and, based on that advice, establish an acceptable biological catch rule. The ABC control rule is relied on to set the ABC, which must be equal to or less than OFL, to account for scientific uncertainty, and the final ACL must be equal to or less than ABC, to take into account management uncertainty. Id. § 600.310(e)-(f). Finally, ACLs must also be consistent with the National Standards. Id. § 1853(a)(1)(C).

         ii. The 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(C). In an EIS, the agency must "take a 'hard look' at the environmental consequences before taking a major action." Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983) (citation omitted). "NEPA exists to ensure a process, not to ensure any result." Inland Empire Pub. Lands Council V. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996) (emphasis in original) (citation ommitted).

         To determine whether an EIS must be prepared, the agency must first prepare an environmental assessment ("EA"). 40 C.F.R. § 1501.4(b). An EA must "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." Id. § 1508.9(a)(1). If the agency determines, after preparing an EA, that a full EIS is not necessary, it must prepare a Finding of No Significant Impact ("FONSI") setting forth the reasons why the action will not have a significant impact on the environment. Id. §§ 1501.4(e), 1508.13. Even if the agency performs only an EA, it must still briefly discuss the need for the proposal, the alternatives, and the environmental impacts of the proposed action and alternatives. Id. § 1508.9(b).

         b. Factual Background

         The U.S. Atlantic herring fishery is managed through the Atlantic Herring Fishery Management Plan ("Herring FMP"). The Herring FMP was developed by the New England Fishery Management Council (the "Council") and became effective on January 10, 2001., See Flaherty v. Bryson, 850 F.Supp.2d 38, 45 (D.D.C. 2012) ("Flaherty I").

         Atlantic herring inhabit the Atlantic Ocean off the east coast of the United States and Canada, ranging from North Carolina to the Canadian Maritime Provinces. Id. Atlantic herring play a vital role in the Northwest Atlantic ecosystem, serving as a "forage species, " i.e. food, for a number of other fish, marine mammals, and seabirds. Id. Atlantic herring also play an important role in the region's economy because of the prevalence of commercial fishing. Id.

         i. Amendment 4

         On March 2, 2011, NMFS published its Final Rule implementing "Amendment 4" to the Herring FMP. Final Rule, 76 Fed. Reg. 11, 373 (Mar. 2, 2011). The Council and NMFS had developed Amendment 4 to bring the FMP into compliance with new ACL and accountability measure requirements of the MSA by the 2011 statutory deadline. See Final Rule, 76 Fed. Reg. 11, 372 (Mar. 2, 2013). Plaintiffs brought this suit to challenge several aspects of Amendment 4. See Complaint [Dkt. No. 1]. On March 8, 2012, this Court issued its opinion on the parties' cross-motions for summary judgment which, inter alia, . upheld the ACLs and AMs of Amendment 4, but found that the agency had failed to consider the potential environmental impacts of reasonable alternatives, as required by NEPA. See Flaherty I, 850 F.Supp.2d 38.

         ii. Framework Adjustment 2 and Atlantic Herring Fishery-Specifications for 2013-2015

         On October 4, 2013, NMFS issued a final rule implementing the 2013-2015 Specifications. 78 Fed. Reg. 61828 (Oct. 4, 2013); see also accompanying Final Environmental Assessment, AR 010991-011393. The 2013-2015 Specifications set catch specifications for the herring fishery for the 2013-2 015 fishing years, including new ACLs and additional AMs. The 2013-2015 Specifications were based on the most recent stock assessment ("SAW 54") for Atlantic herring, prepared by the 2012 Stock Assessment Review Committee of the 54th Northeast Regional Stock Assessment Workshop. 7 8 Fed. Reg. at 61829.

         The Council considered, in varying degrees of detail, five potential ABC control rules for selection. The first, referred to as the "no action" alternative, would have maintained the ABC specifications from 2012. AR 011034. The second, referred to as the "constant catch" alternative, would specify a constant ABC of 114, 000 metric tons for all three years. AR 011035. The third, referred to as the "75% Fmsy"[2] alternative, would have set the ABC at 130, 000 metric tons in 2013, 102, 000 metric tons in 2014, and 88, 000 metric tons in 2015. AR 011038.

         Plaintiffs submitted two additional ABC control rules for consideration, referred to as the Lenfest Control Rule and the Pacific Control Rule. Both the Lenfest and Pacific Control Rules use a rate of 50% of Fmsy and under both those Rules the ABC would have been 93, 000 metric tons in 2013, 77, 000 metric tons in 2014, and 68, 000 metric tons in 2015. AR 011066. The difference between the two is that under the Lenfest Control rule, the fishing rate would decrease as herring biomass decreased, and if the herring biomass decreased below a cutoff level, all fishing would cease. AR 011065-66. Under the Pacific Control Rule, the fishing rate would stay the same until herring biomass declined below the cutoff level, at which time all fishing would cease. AR 011066.

         c. Procedural Background

         Plaintiffs filed their Complaint [Dkt. No. 1] on April 1, 2 011, challenging Amendment 4. On March 8, 2 012, this Court issued a Summary Judgment Order holding that Amendment 4 violated certain provisions of the MSA, APA, and NEPA. See Flaherty I, 859 F.Supp.2d at 73.

         On August 2, 2012, after further briefing on the proper remedy, this Court issued a detailed Memorandum Order remanding the action to Defendants and containing specific guidance, as well as a timeline, for actions Defendants were to take and complete within one year ("Remedial Order") [Dkt. No. 41]. What is relevant to the Motions at hand is that the Remedial Order instructed Defendants to recommend to the Council that it consider, "as part of the 2013-2015 herring specifications (or another appropriate action to be completed within one year of the date of [the remedial order]), " a range of alternatives "to the interim ABC control rule for the Atlantic herring fishery, at least one of which shall be based on the most recent best available science for setting ABC control rules for herring" and other forage fish." Id. at 12-13.

         On November 4, 2013, Plaintiffs filed a motion for leave to file a Supplemental Complaint to challenge NMFS's final rule implementing the 2013-2015 Specifications [Dkt. No. 59], which was granted on December 27, 2013 [Dkt. No. 66]. On November 22, 2013, Plaintiffs filed a separate Motion to Enforce the Remedial Order [Dkt. No. 62]. Plaintiffs alleged that Defendants failed to comply with the Court's Remedial Order in several ways. One of Plaintiffs' allegations was that Defendants failed to consider a reasonable range of alternatives to the interim Atlantic ...


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