MEMORANDUM OPINION
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
“Like
the grizzly bear on land, the dusky shark is seated at the
top of the food chain and helps to maintain balance in the
ecosystem by eliminating weak and sick individuals, providing
scavenging species with food, and regulating the diversity,
distribution, and behavior of prey species.” So begins
plaintiff Oceana, Inc.'s description of the formidable
marine species at the center of this case. But the predator
dusky shark, Oceana says, has become prey, thanks to a deadly
combination of rampant overfishing and regulatory neglect.
That one of the world's most fearsome species can be
rendered among its most vulnerable in the space of a few
decades provides rich context for the administrative law
dispute this case presents.
As for
that dispute, Oceana demands that federal regulators do more
to stem the dusky shark's decline. Specifically, it
claims that the National Marine Fisheries Service's most
recent effort to protect the dusky shark violated the
Magnuson-Stevens Act, the National Environmental Policy Act,
and the Administrative Procedure Act by: (1) failing to
establish management measures to constrain the number of
dusky sharks accidentally caught as “bycatch”;
(2) ignoring available evidence about the prevalence of
bycatch, leading to an underestimation of the overfishing
problem and inadequate corrective measures; and (3) failing
to take a hard look at a reasonable range of alternatives for
achieving the agency's chosen goal for reducing dusky
shark mortality. Both sides have moved for summary judgment.
After reviewing the parties' submissions and the
administrative record on which they are based, the Court
finds in favor of Oceana on the first two issues and will
therefore order the agency to reconsider its proposed course
of action. Because a remand is proper for the first two
reasons, the Court need not reach the third.
I.
Background
A.
Legal Framework
A
primer on the two environmental statutes on which
Oceana's claims are based provides necessary context for
understanding the facts at issue.
1.
The Magnuson-Stevens Act
The
Magnuson-Stevens Act (“MSA”), 16 U.S.C.
§§ 1801 et seq. is designed in large part
to prevent overfishing in U.S. coastal waters and mitigate
and reverse its effects where it has already begun. To that
end, the MSA empowers federal agencies to “provide for
the preparation and implementation, in accordance with
national standards, of fishery management plans which will
achieve and maintain, on a continuing basis, the optimum
yield from each fishery.” Id. §
1801(b)(4). A “fishery” is “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).
“Optimum yield, ” generally defined, “means
the amount of fish which will provide the greatest overall
benefit to the Nation, particularly with respect to food
production and recreational opportunities, and taking into
account the protection of marine ecosystems.”
Id. § 1802(33)(A).
The
National Marine Fisheries Service (“Fisheries
Service” or “agency”), through authority
delegated by the Secretary of Commerce, is responsible for
enforcing fisheries' compliance with the fishery
management plans (“FMP”) established under the
MSA. See generally C & W Fish Co. v. Fox, 931
F.2d 1556 (D.C. Cir. 1991). Though the MSA establishes
regional fishery management councils to develop FMPs for
their respective regions, the Fisheries Service itself
handles FMPs for highly migratory species
(“HMS”)-species of tuna, marlin, oceanic sharks,
sailfish, and swordfish-that traverse multiple regions. 16
U.S.C. §§ 1852(a)(3), 1854(c). The regional
councils and the Fisheries Service are required to create an
FMP, or amend an existing one, when the Secretary of Commerce
determines that a fishery is “overfished.”
Id. § 1854(e)(2). A 2006 amendment to the MSA
further requires all FMPs to “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)(15).[1]
FMPs,
and their implementing regulations, are subject to ten
“National Standards, ” id. §
1851(a)(1)-(10), and other MSA requirements, see id.
§§ 1853(a), 1854(e). Among those relevant here,
National Standard 1 requires FMPs to “prevent
overfishing while achieving, on a continuing basis, the
optimum yield from each fishery for the United States fishing
industry.” Id. § 1851(a)(1). National
Standard 2, moreover, requires that FMPs “be based upon
the best scientific information available.”
Id. § 1851(a)(2).
The
Fisheries Service, pursuant to another MSA command,
id. § 1851(b), provides its own gloss on the
statute's mandatory National Standards through a set of
guidelines, codified at 50 C.F.R. §§
600.305-600.355. The guidelines do “not have the force
and effect of law, ” but the various regional councils
and Fisheries Service personnel are instructed to use them
“to assist in the development of fishery management
plans.” 16 U.S.C. § 1851(b). Most relevant to this
suit, the guidelines clarify how to develop and implement
annual catch limits (“ACLs”) and accountability
measures (“AMs”). See, e.g.,
id. § 600.310(g)(3).
2.
The National Environmental Policy Act
The
National Environmental Policy Act (“NEPA”), 42
U.S.C. §§ 4321-4370h, ensures that agency
decisionmakers and the public at large are apprised of the
environmental impact of proposed federal action. Though NEPA
does not impose substantive environmental obligations on
federal agencies, Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 349 (1989), it does force them to
“take a hard look at environmental consequences”
and “provide for broad dissemination of relevant
environmental information, ” id. at 350
(internal quotation marks omitted). That is, “NEPA
itself does not mandate particular results, but simply
prescribes the necessary process.” Id.
One
component of that process is the requirement that an agency
prepare an environmental impact statement (“EIS”)
any time it proposes a “major Federal action[]
significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C). The
“heart” of the EIS is its presentation of the
“environmental impacts of the proposal and the
alternatives in comparative form, ” which
“sharply defin[es] the issues and provid[es] a clear
basis for choice among options by the decisionmaker and the
public.” 40 C.F.R. § 1502.14.
B.
Factual Background
1.
Dusky Sharks, Overfishing, and Government Intervention
The
dusky shark is a coastal-pelagic fish that inhabits temperate
and tropical waters. Administrative Record (“AR”)
at 009233-34.[2] The species is extremely mobile; in the
Atlantic Ocean, for instance, the dusky shark travels from
Nova Scotia to Cuba and from Nicaragua to southern Brazil.
AR009236. Accordingly, the dusky shark is classed as a
“highly migratory species” under the MSA.
See 16 U.S.C. §§ 1852(a)(3), 1854(c).
For
rather obvious reasons-it grows to an average length of
twelve feet and a weight of 400 pounds-the dusky shark
functions as an apex predator. AR009087; AR009163; AR009055.
Yet for more subtle ones-it is slow-growing, long-lived, slow
to sexually mature, and produces few offspring-the dusky
shark is particularly vulnerable to predation of a different
sort: human overfishing. AR008960; AR007155. Given its slow
maturation and reproductive capacity, even relatively light
fishing can cause outsized population reduction, AR009209,
and once depleted, the population is slow to recover,
AR009217; AR000315.
Predictably,
the spread of commercial and recreational shark fisheries in
the final quarter of the 20th century proved disastrous for
dusky sharks. See AR4376 (noting development of a
directed shark fishing fleet and recreational shark fishery
in the 1970s); AR004399 (describing dusky shark mortality as
“low from 1960 through the 1980s” before it
“ramped up to unsustainably high levels in the
1990s”). The Fisheries Service designated dusky sharks
an Endangered Species Act “species of concern” in
1997, AR009094; AR007156, and then a “prohibited
species” in 2000, making it illegal for fishermen to
possess, sell, take, or retain them, AR007053; AR007655-56;
see 50 C.F.R. § 635.24(a)(5). The 1999 Highly
Migratory Species Fishery Management Plan (“HMS
FMP”) hoped that, by “prohibiting possession of
dusky sharks, . . . fishermen [would] adjust their fishing
activities accordingly” and the dusky shark population
would rebound. AR007655.
The
rebound would not occur overnight. When the agency in 2006
conducted its first individual stock assessment[3] of the northwest
Atlantic dusky shark population, it concluded that the
population was “heavily exploited” and noted
several “declining trend[s].” AR001444;
AR008050-51; AR008059. The assessment determined that the
population was experiencing overfishing and was overfished. A
major culprit was bycatch: fishermen didn't want dusky
sharks, but they were catching them anyway while targeting
other fish. See AR004878; AR004403; see
also 16 U.S.C. § 1802(2) (defining bycatch as
“fish which are harvested in a fishery, but which are
not sold or kept for personal use, and includes economic
discard and regulatory discards”). In the Gulf of
Mexico Reef Fish Fishery, for example, fishermen target
snapper and grouper, but their longline gear-basically, a
horizontal line up to 40 miles long with baited hooks at
regular intervals-snared an estimated 800 dusky sharks in
2005, according to one data source. AR008426. Though by law
dusky shark bycatch had to be quickly released, the damage in
many cases was already done. AR007494 (“[T]here is
evidence that dusky sharks experience high at-vessel and
post-release mortality rates[.]”). The bottom-line
figures were startling: the Fisheries Service estimated that
the biomass of the dusky shark population had dropped by as
much as 80 percent since 1960, AR008050; AR008094-96, and
that it could take 100 to 400 years for the population to
recover, AR007156.
The
Fisheries Service in 2008 responded to this bleak report,
with Amendment 2 to the 2006 HMS FMP. Amendment 2 proposed a
rebuilding plan for the dusky shark stock, with a particular
emphasis on the bycatch problem. See AR007887
(“Many of the final actions in this rule . . . should
reduce dusky shark bycatch.”); AR004811 (“This
rebuilding plan . . . focus[es] primarily on bycatch of the
species[.]”). It cut the number of non-prohibited large
coastal sharks that fishing vessels could retain, so as to
reduce fishing effort targeting sharks that might
incidentally ensnare dusky sharks; it implemented time and
area closures, which temporarily halt all fishing, or at
least fishing with certain types of gear, in specified ocean
sectors[4]; and it largely banned fishing for sandbar
sharks, a target species that led to high levels of dusky
shark bycatch. See AR007935-41; AR007087; AR004811.
Later, Amendment 3 to the 2006 HMS FMP had the effect of
setting the dusky shark annual catch limit at zero. AR007570.
Even
with these reforms, the 2011 Fisheries Service stock
assessment returned persistently grim results, see
AR000070 (Table 4), including its finding that the biomass of
dusky sharks capable of reproducing was less than one-fifth
of 1960 levels, id. (2009 row, far-right column);
AR000066. The assessment concluded that overfishing continued
and that dusky sharks remained overfished. AR000427;
AR007565.
In
2012, the Fisheries Service released Draft Amendment 5 to the
2006 HMS FMP, which proposed the following changes: lowering
commercial quotas; re-defining species groups, which is how
species are categorized for management purposes; creating new
or changing existing time and area closures; increasing the
minimum size of sharks that recreational fishermen could
keep, to reduce mortality of sexually immature sharks that
had not yet had a chance to reproduce; and establishing
recreational reporting requirements for certain species of
sharks. See AR001278-1309. After hearing extensive
feedback from the HMS Advisory Panel-consisting of interested
parties in the fishing industry, environmental community,
academia, and non-governmental organizations-and from the
public at large, the Fisheries Service split Draft Amendment
5 into separate rulemakings: one specific to dusky sharks
(Amendment 5b), the other for an amalgam of species
(Amendment 5a). AR003355-56.
By
October 2015, the Fisheries Service had failed to take any
further action on Amendment 5b, and Oceana-a non-profit
organization dedicated to protecting and restoring the
world's oceans-filed suit to force the agency's hand.
Oceana v. Pritzker, No. 1:15-cv-01824-CRC (D.D.C.
filed Oct. 27, 2015). Pursuant to a settlement of that suit,
the Fisheries Service in October 2016 published the proposed
draft of Amendment 5b and the related EIS. AR004828;
AR004825. Immediately before issuing the draft amendment,
however, the Fisheries Service completed another stock
assessment. This one showed some improvement but still bore
warning signs. See AR004402-03. On the one hand, the
assessment indicated that dusky shark overfishing had
declined, AR007079; AR007101, estimated that the species'
mortality need only be reduced 12 percent from 2015 levels to
end overfishing, AR007101, and projected that a 35 percent
reduction from 2015-mortality levels would give the
population a 50 percent chance at returning to sustainable
levels by 2107 (not 2017), AR007104. On the other
hand, the assessment yet again concluded that dusky sharks
remained overfished with overfishing occurring. AR007101;
AR004804.
The
Final Rule implementing Amendment 5b (“Amendment
5b”), promulgated in April 2017 after a public comment
period, addressed these latest findings. It sought to end to
dusky shark overfishing by implementing a modified rebuilding
plan for the population, including the establishment of new
accountability measures. AR007111. Amendment 5b requires
recreational and commercial fishermen to undergo education on
dusky shark identification to reduce bycatch retention rates
by fishermen who misidentify and fail to release them; it
establishes a release protocol in the pelagic
longline[5] fishery; it mandates training on how to
safely handle dusky sharks to reduce mortality due to
bycatch; it orders fishermen in the recreational Atlantic
shark fisheries and the directed shark bottom longline
fishery to use circle hooks, thought to be less harmful and
thus less likely to cause death after discard; and it
establishes a fleet communication protocol to help fishermen
avoid areas where dusky sharks are likely to be ensnared.
AR007565. As for hard targets, the Fisheries Service says
that Amendment 5b, based on the 2016 stock assessment,
“aims to achieve a 35 percent mortality reduction
relative to 2015 levels, and rebuild dusky shark stock by the
year 2107.” Id.
C.
Procedural Background
Oceana
filed suit one month later, in May 2017, alleging that
Amendment 5b violates the MSA and APA and that the EIS
accompanying Amendment 5b violates NEPA and the APA. It named
as defendants Secretary of Commerce Wilbur Ross, the National
Oceanic and Atmospheric Administration (“NOAA”),
and the Fisheries Service. Oceana brought five counts in its
complaint, but distills from these “three fundamental
errors”: first, the Fisheries Service failed to
“place a definite, enforceable limit on the number of
dusky sharks caught and killed as bycatch” despite
bycatch being the primary cause of dusky shark overfishing;
second, the Fisheries Service erroneously calculated bycatch
data, leading it to underestimate the severity of the
overfishing problem; and third, the Fisheries Service offered
“no scientific analysis or evidence” that
Amendment 5b's accountability measures would achieve the
mortality-reduction and population-rebuilding goals the
amendment claimed to be pursuing. Pl's Memorandum of
Points and Authorities in Support of Summary Judgment
(“Pl's MSJ”), ECF No. 36-1, at 16-17. Both
parties have since moved for summary judgment. The Court held
a hearing on December 11, 2018, and the matter is now ripe
for the Court's resolution.
II.
Legal Standard
“Although
styled Motions for Summary Judgment, the pleadings in this
case more accurately seek the Court's review of an
administrative decision.” Oceana, Inc. v.
Locke, 831 F.Supp.2d 95, 106 (D.D.C. 2011). The APA
governs judicial review of a final agency action under the
MSA and NEPA. 5 U.S.C. §§ 701-06; 16 U.S.C. §
1855(f)(1)(B); Theodore Roosevelt Conservation P'ship
v. Salazar, 661 F.3d 66, 72 (D.C. Cir. 2011). Under the
APA, courts “hold unlawful and set aside” agency
actions that are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). “This arbitrary and capricious
standard of review is a highly deferential one, which
presumes the agency's action to be valid.”
Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283
(D.C. Cir. 1981) (quotation and citation omitted). In
applying this “narrow” review, a court may not
“substitute its judgment for that of the agency,
” but instead should ask only “whether the
[agency's] decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment.” Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971).
III.
Analysis
The
Court begins its analysis with Oceana's argument that the
Fisheries Service must consider other bycatch evidence-in
particular, bycatch data recorded in logbooks maintained by
fishing vessels-in crafting Amendment 5b. The Court concludes
that Oceana is right, and that conclusion informs its
analysis on the remaining issues. For if the agency ignored
contrary evidence in violation of the APA and failed to base
its management decisions on the best scientific evidence in
violation of the MSA, it has to go back and incorporate that
evidence-or better explain why it chose not to-before the
Court can meaningfully assess whether the accountability
measures in Amendment 5b are sufficient and whether the
agency unreasonably failed to consider alternative
accountability measures.
A.
Evidentiary Basis for Agency Action
An
agency action is arbitrary and capricious under the APA
“if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider an
important aspect of the problem, [or] offered an explanation
for its decision that runs counter to the evidence before the
agency[.]” Motor Vehicle Mfrs. Ass'n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). National Standard 2 of the MSA imposes its own
process requirement on the Fisheries Service: its
conservation and management measures must be based on the
“best scientific information available.” 16
U.S.C. § 1851(a)(2). While this means the Fisheries
Service may not “disregard superior data in reaching
its conclusion, ” a National Standard 2 challenge
“will normally fail, unless there is some indication
that superior or contrary data was available and that the
agency ignored such information.” Guindon v.
Pritzker, 31 F.Supp.3d 169, 195 (D.D.C. 2014) (internal
quotation marks omitted).
Oceana
contends that the Fisheries Service ran afoul of these
process requirements in two separate, but related, ways.
Pl's MSJ at 22; Pl's Combined Opposition and Reply
(“Pl's Opp.”), ECF No. 40, at 9. First, the
Fisheries Service relied on incomplete and inaccurate bycatch
data, leading it to underestimate the severity of the
bycatch, and thus the overfishing, problem. Pl's Opp. at
8-9 (“In adopting Amendment 5b, the Service ignored key
evidence necessary to evaluate the dusky shark bycatch
numbers both within the HMS Fishery and outside the HMS
fishery.”). Second, as a result of the first mistake,
the agency failed to explain how Amendment 5b would
effectively redress the bycatch problem and stop overfishing.
See Pl's Opp. at 9 (“Without a full
picture of the magnitude of this entire bycatch problem, the
Service could not possible determine that its measures will
reduce bycatch mortality by the amount necessary” to
rebuild the population.). The Court agrees with Oceana on the
first point, which obviates the need for it to reach the
second.
Oceana's
basic complaint is that the Fisheries Service relied on an
unreasonably narrow set of data in crafting Amendment 5b. It
claims the agency made two key mistakes: first, it ignored
evidence from fishermen's self-reported logbooks that
suggested significant bycatch was occurring in non-HMS
fisheries, leading to the erroneous conclusion that Amendment
5b's new accountability measures need only address
activity in the HMS fishery, Pl's MSJ at 23; and second,
it irrationally relied on bycatch data calculated by
independent observers on selected vessels to the exclusion of
fishermen logbook data in assessing the bycatch problem
within the HMS Fishery, id. at 30. These ostensibly
discrete blunders are in fact bound up with one another: if
it was arbitrary and capricious for the agency to exclude
logbook data from its assessment of the bycatch problem, that
problem pervades the agency's analysis, whether it
pertains to the HMS fishery or ...