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Oceana, Inc. v. Ross

United States District Court, District of Columbia

August 24, 2017

OCEANA, Inc., Plaintiff,
v.
WILBUR ROSS, JR., in his official capacity as Secretary of the United States Department of Commerce, et al., Defendants.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE UNITED STATES DISTRICT JUDGE.

         As part of its efforts to prevent overfishing, Congress has directed the National Marine Fisheries Service and regional councils to establish methodologies for collecting and reporting data on fish that are caught but subsequently discarded. Such discards are known as bycatch. In response to the congressional directive, the Northeast region adopted its Standardized Bycatch Reporting Methodology in 2015. Oceana, Inc., a nonprofit organization focused on protecting the oceans, claims that the adoption of this methodology violates the Magnuson-Stevens Act (MSA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA). Defendants and Oceana have filed cross-motions for summary judgment. For the reasons that follow, the Court will deny Oceana's motion and grant defendants' motion.

         BACKGROUND

         To provide context for this case, the Court must introduce the reader to the world of fisheries regulation and the history of bycatch reporting methodologies in the Northeast region. First, the Court will explain the role of bycatch in the fishing industry and the statutory framework for regulating it. Next, the Court will provide a summary of the Northeast region's prior attempts to establish a standardized bycatch reporting methodology and the litigation surrounding those attempts. Finally, the Court will outline the elements of the current methodology and Oceana's challenges to it.

         I. CONGRESS REQUIRES A STANDARDIZED BYCATCH REPORTING METHODOLOGY (SBRM)

         Fishermen and fishing vessels do not always keep every fish that they catch. “[F]ish which are harvested . . . but which are not sold or kept for personal use” are called “bycatch.” 16 U.S.C. § 1802(2). There are a variety of reasons for discarding fish. Economic discards occur when fish are “of an undesirable size, sex, or quality, or for other economic reasons.” Id. § 1802(9). Regulatory discards are fish discarded because they are of a type that “fishermen are required by regulation to discard whenever caught, or are required by regulation to retain but not sell.” Id. § 1802(38). Although fishing vessels may return fish to the water, the phenomenon of bycatch is important because some discarded fish do not survive. (See Administrative Record (“AR”) 6472-73.)

         The National Marine Fisheries Service (NMFS) regulates bycatch and other aspects of fishing based on the directives in the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801 et seq. (“MSA”). The purpose of the MSA is to “promote domestic commercial and recreational fishing” while also “conserv[ing] and manag[ing] the fishery resources.” Id. § 1801(b). To implement those goals, the MSA establishes eight Regional Fishery Management Councils, which are responsible for developing Fishery Management Plans (FMPs) for their regions. Id. § 1852. There must be a plan for each fishery, which consists of “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.” Id. §§ 1802(13), 1852(h). The Secretary of Commerce is responsible for approving FMPs and FMP amendments after public notice and comment, and the Secretary promulgates final regulations as necessary to implement the FMPs. Id. §§ 1802(39), 1853(c), 1854(a), (b). NMFS performs these duties on behalf of the Secretary. Oceana, Inc. v. Locke, 831 F.Supp.2d 95, 101 (D.D.C. 2011).

         Congress has established certain requirements for FMPs. 16 U.S.C. § 1853(a). They must include, inter alia, “conservation and management measures . . . 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). They must “assess and specify the present and probable future condition of, and the maximum sustainable yield and optimum yield from, the fishery, ” “specify objective and measurable criteria for identifying when the fishery . . . is overfished, ” and “establish a mechanism for specifying annual catch limits . . . at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.” Id. § 1853(a)(3), (10), (15). The provision at issue in this case requires FMPs to “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable and in the following priority - (A) minimize bycatch; and (B) minimize the mortality of bycatch which cannot be avoided.” Id. § 1853(a)(11). Bycatch reporting is necessary to understand the scope of bycatch problems and to make sound fisheries management decisions. (AR 6473.)

         II. PRIOR ATTEMPTS TO ESTABLISH AN SBRM

         The Mid-Atlantic and New England Fishery Management Councils have made several attempts to establish standardized bycatch reporting methodologies to satisfy the requirements of the congressional directive. Initially, they adopted different methodologies in amendments to individual FMPs. Amendment 13 to the Northeast Multispecies FMP purported to establish an SBRM for that fishery. See Oceana, Inc. v. Evans, Civ. No. 04-811, 2005 WL 555416 (D.D.C. Mar. 9, 2005) (“Oceana I”). Amendment 13 endorsed the use of at-sea fishery observers - scientists who board fishing vessels to record discards during the fishing trip - to obtain data from a sample of fishing trips. Id. at *38; see Oceana, Inc. v. Locke, 725 F.Supp.2d 46, 50 n.10 (D.D.C. 2010) (“Oceana III”), rev'd, 670 F.3d 1238 (D.C. Cir. 2011). In the amendment, the Council stated that it “desire[d] 10 percent observer coverage.” Oceana I, 2005 WL 555416, at *38. In response to comments, the final rule stated that NMFS “intend[ed] to maintain its observer coverage . . . at a minimum level of 5 percent.” Id. Noting that the level of observer coverage was subject to change at the whim of the Secretary, this Court held in 2005 that “an FMP that merely suggests a hoped-for result . . . does not measure up to the statute's requirements.” Id. at *39-40. The Court also found that the amendment did not contain any new methodology and disregarded the best scientific information available. Id. at *39-42. Therefore, it remanded Amendment 13 to the agency for further action to address the bycatch monitoring requirement of the MSA. Id. at *43.

         At about the same time, the Court also considered the adequacy of Amendment 10 to the Atlantic Sea Scallop FMP. See Oceana, Inc. v. Evans, 384 F.Supp.2d 203 (D.D.C. 2005) (“Oceana II”). Amendment 10 proposed to fund a live observer program by setting aside one percent of the total allowable catch and days at sea, so that fishing vessels required to carry an observer could use the extra fishing allotment to cover the costs of the observer. Id. at 232 & n.37. As for how those vessels would be chosen, the amendment said only that “[t]he Regional Administrator will determine the number of sea sampled trips and distribution by gear and area, taking into account the desired level of sea sampling needed to estimate bycatch with an accuracy appropriate to the scallop [fishery] at which the bycatch information will affect management decisions. As such, it would be appropriate for sea sampling intensity to favor areas of higher than average groundfish and turtle bycatch.” Id. at 233. This Court held that Amendment 10 violated the MSA because it did not set forth any program for obtaining reliable estimates of bycatch. Id. at 232-34. Instead, it assigned that task to the Regional Administrator and gave him complete discretion. Id. As with Amendment 13, the Court also found that the agency had failed to consider the best scientific information available. Id. at 235-36. Thus, in 2005 the Court remanded the bycatch reporting aspect of Amendment 10 as well. Id. at 256.

         NMFS responded to the remand orders in Oceana I and II by developing the Northeast Region Omnibus SBRM Amendment, which was implemented in 2008 and set out bycatch reporting procedures to apply to all thirteen fisheries in the Northeast region. Oceana III, 725 F.Supp.2d at 51. The 2008 SBRM described a methodology to allocate observers to vessels so that the data collected would be sufficient to produce bycatch rates with a particular level of precision. Id. at 54. Specifically, it measured precision as a coefficient of variation (CV) that decreases with increasing precision, and it stated that the CV would be 30 percent or lower for each species or species group. Id. at 54 & n.13. However, if “external operational constraints” prevented NMFS from fully implementing the required observer coverage levels, the Regional Administrator would consult with the councils to determine an appropriate prioritization for available resources. Id. at 54-55. The Administrator could consider data needs for stock assessments or management actions, legal mandates, “and/or any other criteria identified by NMFS and/or the Councils.” Id. This Court rejected Oceana's legal challenges to the 2008 SBRM, id. at 72, but the D.C. Circuit reversed and directed this Court to remand the matter to the agency, Oceana, Inc. v. Locke, 670 F.3d 1238, 1243 (D.C. Cir. 2011) (“Oceana III (Appeal)”). The D.C. Circuit held that NMFS had failed to establish a standardized methodology because it “reserve[d] to itself effectively complete discretion to trigger an exemption” from the methodology that it had described, and there was no meaningful constraint on how the agency would allocate observers once the exemption was triggered. Id. at 1241-43.

         III. 2015 SBRM OMNIBUS AMENDMENT

         Following the remand of the 2008 SBRM, NMFS and the councils revised the methodology to address the D.C. Circuit's concerns. In March 2015, NMFS approved a new version of the SBRM, which is set forth in Standardized Bycatch Reporting Methodology: An Omnibus Amendment to the Fishery Management Plans of the Mid-Atlantic and New England Regional Fishery Management Councils, AR 6438-7511. NMFS then promulgated a final rule implementing the amendment in June 2015. See Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Standardized Bycatch Reporting Methodology Omnibus Amendment, 80 Fed. Reg. 37182 (June 30, 2015) (codified at 50 C.F.R. pt. 648) (“Final Rule”). This 2015 SBRM is the one that Oceana challenges here. To comprehend Oceana's challenges and this Court's decision, it is necessary to understand some basic features of the 2015 SBRM.

         Like the previous SBRMs, the 2015 SBRM relies on placing at-sea observers on some, but not all, fishing trips. (See AR 6443-44, 6480-81, 6594-95, 6685-86.) Observers are biologists who record the amount of catch and bycatch to the lowest taxonomic level possible. (AR 6594-95.) NMFS also considered using electronic monitoring techniques but concluded that the technology was not sufficiently developed to perform the complex data collection supplied by onboard human observers. (AR 6728-29.) Because of the expense of human observers, they observe a sample of fishing trips rather than all trips. (See AR 6619-60, 6712-18.)

         Much of the 2015 SBRM focuses on how to choose the sample of fishing trips to observe so that the data collected will permit reliable estimates of bycatch rates. For purposes of sampling trips and calculating bycatch rates, the SBRM categorizes fishing trips into over forty fishing modes based on the calendar quarter, geographical region, fishing gear type, mesh size, access area, and trip category. (AR 6623-25.) Bycatch data from each fishing mode are used to calculate bycatch rates for each of fifteen different species or species groups. (AR 6703-04.) Thus, the SBRM aims to sample trips in each fishing mode to generate data that will support calculation of bycatch rates for each combination of fishing mode and species or species group. (See id.)

         To determine how many trips to observe, the SBRM considers the precision of the data. “Precision is defined as the degree of agreement of repeated measurements of the same quantity or object.” (AR 6620.) Assuming that measurements are not all biased in the same way, greater precision will lead to greater accuracy (i.e., closeness between the measured value and the true value). (AR 6620-21.) The SBRM uses a “standard measure of precision” called the coefficient of variation (CV), which is “calculated as the ratio of the square root of the variance of the bycatch estimate (i.e., the standard error) to the bycatch estimate itself.” (AR 6622 n.27.) A high CV means that the calculated bycatch estimate is not very precise, while a low CV indicates that the estimate is very precise. (Id.) The SBRM describes methods for calculating how many fishing days should be observed so that the CV of the bycatch estimate will not exceed a certain threshold. (See AR 6637-60.)

         The SBRM procedure for determining the number of observer days consists of first calculating the days required to achieve a CV standard of 30 percent and then applying several adjustments. The initial calculation is the number of observer days required in each fishing mode to attain a CV of no more than 30 percent for each combination of fishing mode and species group. (AR 6703-04.) Then, the days are adjusted using an importance filter that is “designed to ‘weed out' particular combinations of fishing gear and bycatch species where the infrequency and variable amounts of discards would result in high observer sea day coverage levels, in spite of the fact that the actual magnitude and frequency of discards may be low and of small consequence to the discarded species . . . .” (AR 6691-6701.) The importance filter eliminates (1) fishing modes for a species that together contribute less than 95 percent of the cumulative discards of that species and (2) fishing modes for a species when the total discards of the species in those modes are less than 98 percent of the cumulative fishing mortality of that species. (AR 6696-6701.) As a result, the observer days for each fishing mode will be set by the needs of the species with the next highest observer day requirements, after some species are removed by the importance filter. (Id.) For example, suppose that 1000 days would be required to attain a 30% CV for all species in a particular mode but bluefish are eliminated because such a low proportion of their discards occur in that mode. If only 500 days are required to attain a 30% CV for all remaining species, the SBRM will assign only 500 days to that mode, instead of 1000. Thus, by design, the SBRM will not achieve a 30% CV for combinations of species and fishing mode that fall outside its thresholds for importance. (See AR 6691-6701.)

         In addition to adjusting the observer days based on the importance filter, the SBRM also adjusts the days based on a prioritization process that depends on funding. The prioritization process involves two steps: first, identifying the available funding for the SBRM, and second, eliminating lower-priority observer days until the total days can be covered by the available funding. (AR 6712-16.)

         The funding step incorporates a series of decisions by Congress and NMFS. Congress appropriates a lump sum for the National Oceanic and Atmospheric Administration (NOAA) and uses an explanatory statement to specify the funding level for NMFS, including funding amounts for programs, projects, and activities (PPAs) within NMFS. See, e.g., Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. 113-235, 128 Stat. 2130, 2178 (Dec. 16, 2014); Explanatory Statement, 160 Cong. Rec. H9343 (daily ed. Dec. 11, 2014). NMFS allocates the funding from the congressional PPAs related to bycatch and observer coverage among its own, more detailed funding lines. (See, e.g., AR 7521-22.) For the 2015 fiscal year, NMFS allocated most of the funding from the two related PPAs to seven regional observer funding lines (Atlantic Coast Observers, East Coast Observers, Hawaii Longline Observer Program, North Pacific Marine Resources Observers, Northeast Fisheries Observers, South Atlantic/Gulf Shrimp Observers, and West Coast Observers) and two observer funding lines that were not regionally specific (Reducing Bycatch-Observers, National Observer Program). (Id.)[1] NMFS decides how much funding from each of its funding lines goes to each region and how much to NMFS Headquarters. (See id.) All funding that NMFS allocates to the Northeast region from four specified funding lines (Northeast Observers, Atlantic Coast Observers, National Observer Program, and Reducing Bycatch- Observers) must be used for the SBRM. (AR 6713.)[2] “[C]onsistent with historic practice, ” NMFS will deduct from those totals the costs for the SBRM other than observer days, as well as standard overhead costs, so not all of the specified funds will be converted to observer sea days. Id.; Final Rule, 80 Fed. Reg. at 37187-88.

         If, in a particular year, the funds that NMFS allocates to the Northeast region from the four specified funding lines are not sufficient to cover the number of observer days calculated based on the 30% CV standard and the importance filter, the SBRM prescribes a prioritization process to determine how the available funding will be used. (AR 6713, 6715-16.) The goal is to prioritize observer sea days so as to minimize the number of combinations of fishing mode and species that have a CV higher than 30%. (AR 6715.) To accomplish that, the SBRM states that “the species group sea days needed would be organized in descending order within each fishing mode for all modes, and the highest difference in needed sea days between adjacent species groups within the fishing modes would be identified. The sea days associated with the species group that represents the highest number of observer sea days from that fishing mode would be removed . . . .” (Id.) Thus, the number of sea days for that mode would be the number required to achieve a 30% CV for all species other than the one for which sea days were removed. The elimination procedure is repeated until the remaining sea days are within that year's funding limit. (AR 6715-16.) In sum, the SBRM determines the number of observer days in each fishing mode by (1) calculating the number required to achieve a 30% CV, (2) reducing the days according to the importance filter, and (3) further reducing the days according to the funding-dependent prioritization process.

         Oceana claims that the 2015 SBRM violates the MSA, APA, and NEPA. (Compl. at 35-42, ECF No. 1.) Both Oceana and NMFS[3] have moved for summary judgment based on the administrative record. (Oceana Mot. Summ. J., ECF No. 26 (“Oceana Mot.”); Defs.' Cross-Mot. Summ. J., ECF No. 28.) According to Oceana, NMFS did not establish an SBRM as required by the MSA, because the 2015 SBRM fails to require NMFS to allocate sufficient funding to achieve the 30% CV standard. (Oceana Mot. at 12-17.) Furthermore, Oceana argues that NMFS improperly failed to reconsider several issues when it revised the 2008 SBRM to become the 2015 SBRM. (Id. at 17-26.) Specifically, Oceana challenges the agency's failure to reconsider electronic monitoring and observer bias, as well its decision to restrict the methodology to federally managed species. (Id.) In addition, Oceana contends that the agency's selection of 30 percent as the CV standard was arbitrary. (Id. at 26-27.) Finally, Oceana argues that NMFS violated NEPA by preparing an environmental assessment that ignores indirect and cumulative impacts on the environment. (Id. at 27-38.)

         ANALYSIS

         This Court rejects Oceana's challenges. The MSA does not bar NMFS from reserving some discretion about the funding of the SBRM, nor does it prevent NMFS from establishing a methodology that includes a method for adapting to the available funding. Oceana has failed to point to any superior evidence that NMFS failed to consider, and the agency's selection of the 30% CV standard was adequately justified. Furthermore, NMFS did not ignore reasonably foreseeable environmental impacts when it prepared the environmental assessment. Therefore, the Court will grant summary judgment to NMFS.

         I. STANDARD OF REVIEW

         Challenges to agency action under the MSA, APA, and NEPA are all subject to the standard of review set forth in the APA. See 5 U.S.C. § 706 (APA); 16 U.S.C. § 1855(f) (MSA); Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97-98 (1983) (NEPA). Under the APA standard of review, a court may hold agency action unlawful when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). For an agency action to survive review under this arbitrary and capricious standard, the agency must have “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.'” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). A court “may not supply a reasoned basis for the agency's action that the agency itself has not given, ” id. (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)), but it may “uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned, ” id. (quoting Bowman Transp. Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281, 286 (1974)). When an agency's action involves “complex judgments about sampling methodology and data analysis that are within the agency's technical expertise, ” a court gives those judgments “an extreme degree of deference.” Kennecott Greens Creek Min. Co. v. Mine Safety & Health Admin., 476 F.3d 946, 956 (D.C. Cir. 2007) (internal quotation marks and alterations omitted).

         To review an agency's interpretation of a statute that it administers, courts apply the two-step test that the Supreme Court established in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984); see Shays v. FEC, 414 F.3d 76, 96 (D.C. Cir. 2005). “If the intent of Congress is clear, . . . the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43. If the statute is ambiguous, then the court must uphold an agency interpretation as long as it is “based on a permissible construction of the statute.” Id. At this second step, the Chevron and APA standards both require the court to determine whether the agency's interpretation was reasonable. See Shays, 414 F.3d at 96-97; Oceana III (Appeal), 670 F.3d at 1240.

         II. ESTABLISHING A STANDARDIZED METHODOLOGY

         Oceana argues that NMFS has failed to “establish a standardized reporting methodology” for bycatch, 16 U.S.C. § 1853(a)(11), because the 2015 SBRM does not require that NMFS allocate sufficient funding to achieve the 30% CV standard for all fishing modes and species. (Oceana Mot. at 12-17.) NMFS responds that there is no requirement that the agency fund the SBRM at any particular level, and it has established a standardized methodology by setting both a quantifiable funding trigger and a non-discretionary formula to distribute the funded observer days. (Defs.' Mem. Supp. Cross-Mot. Summ. J. at 14-20, ECF No. 28-1 (“Defs.' Mem.”).) The Court agrees with NMFS that it has established a standardized methodology, notwithstanding its discretion about funding.

         A. ...


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