MEMORANDUM OPINION
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
As part
of its responsibility over the management of marine
resources, the National Marine Fishery Service (“the
Service”) adopts and implements fishery management
plans designed to promote the conservation and sustainable
use of the Nation's fisheries. After promulgating these
plans, the Service then periodically amends them, often in
response to changes in the industry, the environment, or the
applicable regulatory and legal framework. In 2016, the
Service adopted just such an amendment-Amendment 113-to the
management plan for Pacific cod in the Bering Sea and
Aleutian Islands archipelago. The Service concluded that
previous conservation measures had led to more vessels in the
region processing their catch at sea, and fewer vessels
delivering catch to onshore processing plants in two nearby
island fishing communities-Adak and Atka. To mitigate that
impact and allow those communities to develop sustainable
cod-processing enterprises, Amendment 113 sets aside a
portion of the Pacific cod fishery off the coast of the
Aleutian Islands each year for exclusive harvest by vessels
that intend to deliver their fish to onshore processing
plants located within the specific geographic span of the
Aleutian Islands that encompasses Adak and Atka.
Several
trade associations and commercial fishing groups operating in
the Aleutian Islands region sued to challenge the amendment,
arguing that it exceeded the Service's statutory
authority under the Magnuson-Stevens Act and is otherwise
inconsistent with applicable law. Adak and Atka intervened as
defendants. The parties each filed cross-motions for summary
judgment. Although the Court finds that the Service did not
exceed its statutory authority in imposing a harvest
set-aside with an onshore delivery requirement, it
nonetheless determines that the Service failed to demonstrate
that the amendment satisfied the requisite standards for such
regulatory measures set forth by the Magnuson-Stevens Act.
Accordingly, and for the reasons explained below,
Plaintiffs' motion will be granted, and Defendants'
and Intervenors' motions will be denied.[1]
I.
Legal and Factual Background
A.
The Magnuson-Stevens Act
In
1976, Congress enacted the Magnuson-Stevens Fishery
Conservation and Management Act (the “MSA” or
“Act”), 16 U.S.C. § 1801 et seq.,
with the stated aims, among others, “to conserve and
manage the fishery resources” of the United States,
“to promote domestic commercial and recreational
fishing under sound conservation and management principles,
” and to prepare and implement “fishery
management plans which will achieve and maintain, on a
continuing basis, the optimum yield from each fishery.”
16 U.S.C. § 1801(b). To achieve these goals, Congress
established eight Regional Fishery Management Councils, each
of which is “granted authority over a specific
geographic region and is composed of members who represent
the interests of the states included in that region.”
C & W Fish Co. v. Fox, 931 F.2d 1556, 1557 (D.C.
Cir. 1991) (citing 16 U.S.C. § 1852).
Congress
has tasked these councils with developing Fishery Management
Plans (FMPs), and any later amendments to them, “for
each fishery under its authority that requires conservation
and management.” 16 U.S.C. § 1852(h)(1); see also
Anglers Conservation Network v. Pritzker, 809 F.3d 664, 667
(D.C. Cir. 2016).[2] Each FMP must include, among other things,
the “conservation and management measures, applicable
to foreign fishing and fishing vessels of the United States,
which 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.” 16 U.S.C. § 1853(a)(1). The MSA
provides an enumerated set of measures that the councils must
include in all FMPs, see Id. § 1853(a), but it
further outlines a set of “[d]iscretionary
provisions” that may be included if they are necessary
and appropriate for the conservation and management of the
fishery, see Id. § 1853(b).
FMPs
and subsequent amendments, and any regulations promulgated to
implement them, must “be consistent with [ten] national
standards for fishery conservation and management” (the
“National Standards”) that Congress outlined in
the MSA. Id. § 1851(a); see also Id.
§ 1853(a)(1)(C) (requiring that each “conservation
and management measure[]” comply with the National
Standards, as well as with any applicable regulations, law,
or international agreement). In particular, these National
Standards mandate that the conservation and management
measures in each FMP conform to specified objectives and
conditions. See Id. § 1851(a)(1)-(10). And the
Secretary of Commerce, whom Congress granted regulatory
authority over fishery conservation and management under the
MSA, has established a set of advisory guidelines for
developing FMPs and amendments that interpret the National
Standards. See 50 C.F.R. §§ 600.305-.355. These
guidelines, while not carrying the force of law, see 16
U.S.C. § 1851(b), are generally afforded considerable
deference by courts, see, e.g., Oceana, Inc. v. Locke, 831
F.Supp.2d 95, 116-117 (D.D.C. 2011).
When a
council prepares a new FMP or an amendment to an existing
FMP, it must submit the proposal to the Service for review to
ensure that the FMP or amendment “is consistent with
the national standards, the other provisions of [the MSA],
and any other applicable law.” 16 U.S.C. §
1854(a)(1)(A).[3] Following publication of the proposal in
the Federal Register and an opportunity for the public to
respond, the Service may either “approve, disapprove,
or partially approve [the] plan or amendment, ”
depending on its consistency with applicable law.
Id. § 1854(a)(3). Only upon approval by the
Service and promulgation as a final rule (or failure to
approve or disapprove within 30 days) do FMPs or plan
amendments-and the conservation and management measures
contained in them-become effective. See Id.
§§ 1854(a)-(b), 1855(d); Oceana, 831 F.Supp.2d at
101.
B.
Factual and Procedural Background
1.
The Bering Sea-Aleutian Islands Pacific Cod Fishery
The
North Pacific Fishery Management Council (“the
Council”) is tasked with managing fisheries in the
Arctic Ocean, Bering Sea, and Pacific Ocean seaward of
Alaska. 16 U.S.C. § 1852(a)(1)(G). Under that authority,
the Council has developed an FMP for several species of
groundfish in the Bering Sea (BS) and in the waters of the
Aleutian Islands (AI) (collectively “BSAI” or the
“BSAI region”), see 50 C.F.R. § 679.1(b),
including the Pacific cod, AR 1000789.
Pacific
cod is one of the most abundant and valuable groundfish
species harvested in the BSAI region. AR 1000790. Commercial
fishing for BSAI Pacific cod is conducted primarily by either
catcher vessels (“CVs”), which harvest the fish
for delivery to a processor, or catcher-processors
(“CPs”), which are capable of both harvesting
fish and then processing the fish on board. Id.
Historically, CVs have delivered harvested BSAI cod for
processing to both off-shore processors, known as
“motherships, ” and to various onshore processing
plants. AR 4002008.
Under
the groundfish FMP, the Service regulates fishing for Pacific
cod in the region by establishing yearly harvest limitations.
In consultation with the Council, the Service specifies a
“total allowable catch” (TAC) based on projected
overfishing levels and other economic and social factors. AR
1000059-60, 1000790; 50 C.F.R. § 679.20(a), (c). Each
year, shares of the BSAI Pacific cod TAC are then allocated
to specific “sectors” of the commercial fishery,
“defined by a combination of gear type (e.g., trawl,
hook-and-line), operation type (i.e., CV or CP), and vessel
size.” AR 1000791; see also 50 C.F.R. §
679.20(a)(7)(ii)(A). These shares are also apportioned by
seasons, with the first season of the year labeled the
“A season.” 50 C.F.R. §§ 679.20(a)(7),
679.23(e)(5). The members of each sector are collectively
limited to harvesting only the amount of their TAC allocation
for a given season. Id.
At
first, the Service managed Pacific cod in the BSAI region as
a single stock with one TAC for the whole region. See AR
1000059. But beginning in 2014, the Service split the fishery
into a BS stock and an AI stock with separate TACs.
Id. Despite this split, the Service continues to
allocate portions of the TACs at the BSAI level-that is,
sectors are given a share of the combined TACs for the BS
stock and the AI stock which they can harvest anywhere in the
BSAI region. See AR 4000093; ECF No. 35-2 (“Paine
Decl.”) ¶ 8.
2.
Aleutian Islands Fishing Communities
The
Aleutian Islands are dotted with remote fishing communities
that have historically participated in the BSAI fishing
industry, two of which-the communities of Adak and Atka- are
at the center of this matter.
a.
Adak
Adak is
a small community located on Adak Island in the Aleutians.
The community participates in the BSAI Pacific cod fishery by
way of a small, locally-owned CV fleet and, relevant to this
action, a large processing plant. AR 1000090, 1000793; see
also AR 3004834. The plant can process 454 metric tons
(“mt”) of Pacific cod per day, AR 1000090-91, a
considerable amount by the parties' accounts, see
Pls.' MSJ at 9-10; Defs.' MSJ at 6; Intervs.' MSJ
at 12. And according to city leadership, the community
depends significantly on the revenues generated by the plant
and ancillary activities of the fishing industry. See AR
3004834-35. But since its establishment in 1999, the Adak
shoreplant has only been open for processing intermittently,
complicated by several changes in ownership. Id.
b.
Atka
Atka is
a remote island village located about 100 miles east of Adak.
See AR 1000095. Like Adak, the community highly depends on
revenues from commercial fishing. See Id. Since
1995, the community has operated a fish-processing facility,
mainly for halibut and sablefish delivered from commercial
fleets. AR 1000096. As of 2016, the Atka shoreplant had not
processed Pacific cod. See AR 1000281 (Response 14). But Atka
had recently begun a multimillion-dollar expansion and
improvement project to convert the plant into a year-round
processing facility with the capacity to process multiple
species, including Pacific cod. AR 1000096. When Plaintiffs
commenced this action, the Atka shoreplant did not yet have
the necessary equipment to process Pacific cod. See Compl.
¶ 43; ECF No. 31 (“Intervs.' Ans.”)
¶ 43.
3.
Amendment 113
In
2008, the Council began looking into possible protections for
AI fishing communities in response to changes in the BSAI
fishery and commercial fishing industry. See AR 1000049- 50,
3000614-17. Specifically, the Council indicated that the
“impetus for the action” arose from concerns
expressed by representatives of Adak that increased
participation in the BSAI Pacific cod fishery “would
erode the historical shoreplant processing share of the AI
Pacific cod.” AR 1000099. Following several years of
investigation and discussions of various alternatives, the
Council settled on an amendment to the BSAI groundfish
FMP-Amendment 113 (“A113”)- which it submitted to
the Service for review in July 2016. See Fisheries of the
Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian
Islands Management Area; Amendment 113, 81 Fed. Reg. 46, 883
(July 19, 2016). The next month, the Service issued a
proposed rule adopting A113, see AR 1000789-804; 81 Fed. Reg.
50, 444 (proposed August 1, 2016), and after the close of the
comment period, the Service issued a final rule implementing
the amendment, see AR 1000271-95; 81 Fed. Reg. 84, 434
(November 23, 2016).
Amendment
113, at its core, serves to reserve a portion of the
harvested AI Pacific cod for onshore processors located in
two fishing communities in the Aleutian Islands. As stated in
the final rule, A113 “modifies the BSAI Pacific cod
fishery to set aside a portion of the Aleutian Islands
Pacific cod [TAC] for harvest by vessels directed
fishing[4] for Aleutian Islands Pacific cod and
delivering their catch to Aleutian Islands shoreplants for
processing.” AR 1000272; 81 Fed. Reg. at 84, 435. And
the amendment specifically defines “Aleutian Islands
shoreplants” as only those “processing
facilit[ies] that [are] physically located on land west of
170° W. longitude within the State of Alaska, ”
encapsulating the two fishing communities of Adak and Atka.
AR 1000273; 81 Fed. Reg. at 84, 436.
To
accomplish its stated goal, the amendment imposes certain
measures: (1) each year, the Service calculates the A-season
AI Pacific cod “directed fishing allowance”
(DFA), which is equal to the portion of the AI Pacific cod
TAC for the A season available for vessels that are
“directed fishing” for Pacific cod; (2) 5, 000 mt
of the DFA-or the entirety of the DFA if it totals 5, 000 mt
or less that year-is then set aside until March 15 for
harvest by only those “catcher vessels that deliver
their catch of [AI] Pacific cod to [AI] shoreplants for
processing”; and (3) until March 21 of each year, the
harvest of Pacific cod in the Bering Sea by the “trawl
CV sector”[5]-the largest sector participating in
the AI Pacific cod fishery, AR 1000792-is limited by the same
amount of the AI set-aside for that year, AR 1000273-75; see
also 50 C.F.R § 679.20(a)(7)(viii) (codification of
A113). That final measure seeks to ensure that BSAI CVs do
not exhaust their A-season TAC allocations in the BS region
where the set-aside requiring delivery to onshore processors
is not in place-since their TAC allocations can be used in
either the BS region or the AI region-rather than fish in the
AI region and have to deliver harvested cod to AI
shoreplants. AR 1000796-97; 81 Fed. Reg. at 50, 451-52.
The
amendment, however, also includes several failsafe provisions
to ensure that the harvest set-aside does not lead to wasted
cod harvest. First, for the AI set-aside and BS trawl
CV-sector limitation to take effect, either Adak or Atka must
notify the Service of its intent to process AI Pacific cod
the upcoming fishing year, the first year no later than
December 8, 2016, and no later than October 31 for each year
after. AR 1000275.[6] Second, if less than 1, 000 mt of
the AI set-aside is delivered to AI shoreplants by February
28, the AI set-aside and BS trawl CV-sector limitation will
lift for the rest of the A season. AR 1000275.
Explaining
in more detail its rationale for implementing A113, the
Service pointed to several changes in the regulatory
framework that it determined would threaten AI fishing
communities' continued participation in the Pacific cod
fishery. In particular, the Service noted that the BSAI
Pacific cod TAC split and other regional conservation
measures had reduced the amount of Pacific cod available for
commercial harvest for all participants, including fishing
communities like Adak and Atka that had historically
processed Pacific cod or had intentions to develop facilities
to process Pacific cod in the future. AR 1000794-95. And it
further concluded that prior amendments to the FMP had led to
an influx of vessels into the AI region with onboard
processing capacity, which the Service concluded only
exacerbated any threat to those AI communities'
participation in the industry. Id. In explaining its
rationale, the Service clarified that A113 was
“intended to be directly responsive to National
Standard 8 of the [MSA], ” AR 1000795, which states
that “[c]onservation and management measures shall,
consistent with the conservation requirements of [the MSA] .
. ., take into account the importance of fishery resources to
fishing communities . . . to (A) provide for the sustained
participation of such communities, and (B) to the extent
practicable, minimize adverse economic impacts on such
communities, ” 16 U.S.C. § 1851(a)(8).
4.
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