United States District Court, District of Columbia
MICHAEL S. FLAHERTY, et al., Plaintiffs,
PENNY PRITZKER, et al., Defendants.
KESSLER UNITED STATES DISTRICT JUDGE.
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.
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.
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
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. §
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).
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).
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) .
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).
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.
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.
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).
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).
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)
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.
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.
Framework Adjustment 2 and Atlantic Herring
Fishery-Specifications for 2013-2015
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.
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" 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.
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.
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.
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.
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