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Oceana, Inc. v. Ross

United States District Court, District of Columbia

March 11, 2019

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



         “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 ...

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