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The Groundfish Forum v. Ross

United States District Court, District of Columbia

March 21, 2019

THE GROUNDFISH FORUM et al., Plaintiffs,
v.
WILBUR L. ROSS et al., Defendants.

          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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