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Conservation Law Foundation v. Ross

United States District Court, District of Columbia

April 15, 2019

CONSERVATION LAW FOUNDATION, Plaintiff,
v.
WILBUR ROSS, in his official capacity as Secretary of the United States Department of Commerce, <tf a/., Defendants.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE

         When it comes to our nation's critical ocean habitat, Plaintiff Conservation Law Foundation says that the federal government has one job: protect it. So when the National Marine Fisheries Service, an agency under the auspices of the Secretary of Commerce, approved a new management plan for the Gulf of Maine that opened up a broad swath of ocean to the commercial and recreational fishing fleet, CLF was understandably concerned. Hoping to reel in the damage, Plaintiff seeks this Court's intervention. CLF's primary contention is that the Agency ran aground when it failed to sufficiently prioritize conservation measures over economic considerations. The judicial role in evaluating such agency action, however, is limited. While the Court carefully reviews the record to ensure that the Service has sufficiently articulated a rational line based on relevant factors between its factual findings and final conclusions, its function does not extend further. Policymaking is not in the Court's wheelhouse. Finding that the Government satisfied its obligations, the Court will deny Plaintiff's Motion for Summary Judgment and grant Defendants' Cross-Motion.

         I. Background

         The saga underlying this suit is decades in the making. At its heart lies the Service's modification of management plans that govern fisheries in waters seaward of New England. Within one geographic area - the Gulf of Maine - this amendment opened to fishing an ocean corridor that was previously off limits. The series of steps that ultimately spawned this decision is intertwined with one statute's operation: the Magnuson-Stevens Fishery Conservation and Management Act, commonly known as just the Magnuson-Stevens Act or MSA. To provide the necessary context, the Court will thus begin with a brief exposition of this legal scheme. With the stage set, it will then provide an overview of the history that led us here. (On a logistical note, the Court, following the lead of the parties and the format of the appendix, will introduce appendix cites with the acronym “EFH, ” which stands for essential fish habitat.)

         A. Statutory Framework

         Congress passed the MSA to address the persistent problem of overfishing in U.S. waters. See Conservation Law Found. v. Pritzker, 37 F.Supp.3d 234, 239 (D.D.C. 2014). This legislative elixir prescribes a balance between the “twin goals of conserving our nation's aquatic resources and allowing U.S. fisheries to survive.” Oceana, Inc. v. Pritzker, 26 F.Supp.3d 33, 36 (D.D.C. 2014); see also NRDC v. Nat'l Marine Fisheries Serv., 71 F.Supp.3d 35, 37-38 (D.D.C. 2014) (stating similarly). The Act assigns the Secretary of Commerce this responsibility, who has in turn delegated the responsibility to the Service, a division of the National Oceanic and Atmospheric Administration. Oceana, 26 F.Supp.3d at 36; see also 16 U.S.C. § 1852(a), (h).

         Fisheries management is no simple task. To aid in this “exceedingly complex” undertaking, see Oceana, Inc. v. Evans, 384 F.Supp.2d 203, 241-42 (D.D.C. 2005), the Act establishes eight regional Fishery Management Councils, each of which monitors and oversees certain fisheries under its control. See 16 U.S.C. § 1852(a), (h). The makeup of each Council's voting membership is designed to account for the views of a variety of stakeholders with relevant expertise. On each board sits a state official from the region with “marine fishery management responsibility and expertise, ” the regional director of the Service (or her designee), and individuals appointed by the Secretary of Commerce who are knowledgeable regarding either the “conservation and management . . . of the fishery resources of the geographical area concerned” or the “commercial or recreational harvest” of those fisheries. Id § 1852(b)(1)-(2). For the purpose of this action, the New England Fishery Management Council is the relevant body. This Council oversees fisheries in the Atlantic Ocean seaward of states from Maine to Connecticut. Id § 1852(a)(1)(A). To assist each Council in carrying out its responsibilities, the MSA provides in turn for the creation of standing committees of scientists and fishing-industry experts that report periodically on the status and health of fish stocks in each fishery, peer-review new scientific methods for fishery conservation and management, and advise the Council throughout its functions. Id §§ 1852(g)(1); 1852(g)(3)(A); 1852(i)(5). The Service and the Council, assisted by its standing committees, together act to address imbalances in aquatic ecosystems.

         Central to this role - as well as to this case - is the creation of Fishery Management Plans. Each Council must develop and maintain such a plan for each fishery under its control. Id § 1852(a). Fisheries, as defined by the Act, are either “one or more stocks of fish which can be treated as a unit for purposes of conservation and management” or “any fishing for such stocks.” Id. § 1802(13). Stocks, in turn, can be a species or subspecies of fish. Id. § 1802(42). A single FMP thus often governs the management of multiple species of fish. Once developed and implemented, plans can be updated by amendments, which “alter Plans in broad strokes.” Conservation Law Found., 37 F.Supp.3d at 239 (internal citation omitted).

         The Council's FMPs and amendments must follow multiple prescriptions. First, they must be in compliance with ten “national standards for fishery management” established by the MSA, see 16 U.S.C. § 1851(a), which set forth a range of broad and sometimes-competing objectives. See Oceana, Inc. v. Pritzker, 24 F.Supp.3d 49, 68 (D.D.C. 2014). Second, plans must contain certain “[r]equired provisions.” 16 U.S.C. § 1853(a). Many of these provisions ask for specific information - for example, “the number of vessels involved” with the relevant fishery, Id. § 1853(a)(2) - while others set directives more akin to the national standards. See, e.g., Id. § 1853(a)(1)(A) (requiring that FMPs contain measures “necessary and appropriate for the conservation and management of the fishery”). Finally, the Act provides a suite of “[d]iscretionary provisions” that the Council “may” include. Id. § 1853(b).

         Once prepared, each Council submits proposed FMPs or subsequent amendments to the Service. The Service's role at this stage is confined largely to determining whether the proposed plan or amendment complies with applicable law, rather than developing its own preferred measures. It thus acts on behalf of the Secretary of Commerce to “approve, disapprove, or partially approve” the plan or amendment. See 16 U.S.C. § 1854(a)(3). In determining whether or not to approve an FMP, the Service must review it for consistency with the requirements of the MSA, including the national standards and content requirements found at §§ 1851(a) and 1853(a), and, following a 60-day public-notice-and-comment period, “take into account the information, views, and comments received from interested persons.” 16 U.S.C. § 1854(a)(1)-(2). If, upon completing this review, the Agency determines that a plan complies with applicable law and thus approves the FMP or amendment, a final rule and one or more implementing regulations are published in the Federal Register. Id § 1854(b)(3). Approved FMPs and amendments are subject to judicial review under the Administrative Procedure Act if challenged within 30 days of the regulation's promulgation. Id § 1855(f)(1).

         If, however, the Agency concludes that an FMP or amendment fails to comply with applicable law, it does not simply revise the management measures as it desires, but rather sends it back to Council. In doing so, it must notify the Council of “the applicable law with which the plan or amendment is inconsistent” and the “nature of such inconsistences, ” as well as any “recommendations” on measures the Council could take “to conform such plan or amendment to the requirements of applicable law.” Id § 1854(a)(3). Only if the Council fails to return a revised plan is the Service empowered to develop an FMP or amendment itself. Id. § 1854(c)(1)(B); see also Anglers Conservation Network v. Pritzker, 70 F.Supp.3d 427, 431 (D.D.C. 2014).

         Finally, in addition to these requirements of the MSA, any plan or amendment must also conform to the procedural mandates of the National Environmental Policy Act (NEPA). Because the contours of that Act are not necessary to understand the administrative process here, the Court saves a rehearsal of its specifics for a later discussion.

         B. Factual Background

         The Court begins by casting its net back to 1996, when Congress passed an amendment to the MSA that expanded the Act's scope by emphasizing the creation of conservation measures aimed at protecting fish habitat. See Sustainable Fisheries Act, Pub. L. No. 104-297, § 108, 110 Stat. 3559. Preserving the health of habitats, the thinking goes, is key to ensuring productive, and thus sustainable, fish populations. See EFH 7863-64; see also 69 Fed. Reg. 8367 (Feb. 24, 2004) (summarizing amendment). To comply with this directive, the New England Regional Council (the only council at issue here, thus permitting the Court to refer to it simply as “the Council”) initiated an omnibus amendment that attempted to bring each FMP into compliance. See 63 Fed. Reg. 9500 (Feb. 25, 1998). The original amendment's tenure, however, was short lived. In 2000, a court held that its development failed to abide by the procedural requirements set forth in NEPA and enjoined its operation. See Am. Oceans Campaign v. Daley, 183 F.Supp.2d 1, 19-21 (D.D.C. 2000). The Council went back to the drawing board.

         After making changes responsive to that court's order, the Council embarked on a second omnibus amendment in 2004 with the purpose of developing a comprehensive approach to essential-fish-habitat management. See 69 Fed. Reg. at 8368; see also ECF No. 25, Attach. 1 (Def Opp. & Mot.) at 4-5. More specifically, this process sought to update the “EFH components” of each of the seven fishery-management plans under the Council's purview. See 69 Fed. Reg. at 8367. These plans account for the management of 28 species of fish and their respective habitats within the seven fisheries. See EFH 7795-7803. Generally speaking, the Service operationalizes its habitat-protection aims by creating geographically bounded “habitat management areas” (HMAs) or “habitat closures, ” within which it places restrictions on types of fishing. See, e.g., 50 C.F.R. § 648.370. This effort eventually yielded the omnibus amendment challenged here, which the Court will refer to as the Habitat Amendment. (Given that this is the second such endeavor, this Amendment also appears in the record and briefs as the Omnibus Habitat Amendment 2 and OHA2.)

         The scope of this project ebbed and flowed over its lengthy course. Early in the Council's process, it opted to expand the Amendment's purpose to include the consideration of measures aimed at mitigating the impact of fishing on deep-sea corals - a discretionary task under the MSA, see 16 U.S.C. § 1853(b)(2) - but later opted to relegate this task to a stand- alone amendment process. See 83 Fed. Reg. 15240, 15245 (Apr. 9, 2018). The segregation of corals is one decision CLF challenges here.

         Then, in 2012, the Council added to the Amendment's scope goals specific to one of its managed fisheries. The Northeast multispecies fishery, which is alternatively called the groundfish fishery, consists of 13 species divided into 20 stocks and includes, for example, fish ranging from Atlantic cod and halibut to windowpane flounder, ocean pout, and Atlantic wolffish. See EFH 7849-50; Oceana, Inc. v. Locke, 831 F.Supp.2d 95, 102 (D.D.C. 2011). As part of this fishery's management plan, the Service closed certain areas to fishing gear capable of catching groundfish. See 76 Fed. Reg. 35408 (June 17, 2011). These “groundfish closures” thus serve to protect a segment of the fish stock by limiting its exposure to fishers. See Conservation Law Found., 37 F.Supp.3d at 240. Given the spatial overlap between existing groundfish closures and proposed new or modified habitat closures, the Council decided to consider revisions to both categories in conjunction. See 76 Fed. Reg. at 35408. Unlike its deep-sea-corals addition, this one stuck.

         To implement its habitat- and groundfish-protection goals, the Council employed a complex and multi-step process, which relied on multiple expert committees. The Court presents a somewhat simplified version of events here. In its initial phase, the Council first identified or updated the ocean habitat essential to the species of fish within its purview. See 76 Fed. Reg. at 35408. Next, it worked to ascertain the areas within that habitat most vulnerable to harm from fishing gear. Id. To aid in this endeavor, it used a new model, dubbed the Swept Area Seabed Impact or SASI. See EFH 7524. This model churned out data that permitted the Council to understand which areas would benefit most from certain restrictions on fishing gear. Id.; see also EFH 6332. Relying on the groundfish objectives, the Council also turned to survey data to identify areas most important to those fish stocks, which it deemed “groundfish hotspots.” EFH 6332; see also EFH 8096-98. Using input from both sources, the Council developed new and modified closure areas. See EFH 6332; EFH 41204; 83 Fed. Reg. at 15250. It then crafted various alternative fishing-management measures, consisting of combinations of different areas subject to protection and various levels of fishing restrictions within those areas. See EFH 6201- 07. After taking into consideration the conservation value and economic impact of these restrictions in both the short and long term, the Council announced its recommendations.

         The results in the Gulf of Maine are a mixed catch from the pure-conservation standpoint adopted by CLF. The Gulf is broken down into three sub-regions. In the Eastern Gulf of Maine, the proposed Amendment closed grounds that were previously open to all mobile bottom-tending gear. See EFH 6207, 6218. The region ultimately closed, however, is smaller than other alternatives considered by the Council. Id. In the Central Gulf of Maine, the Council largely left intact the existing boundaries of regulated waters, making minor modifications. See EFH 6222. It is in the Western Gulf of Maine that CLF directs most of its fire. There, the Council opted to redraw the eastern boundary of the largest closure so that a few hundred square nautical miles previously closed to fishing became accessible, which amounts to about a 25% reduction in protected area in that sub-region. See EFH 6241; 83 Fed. Reg. at 15246. On net, after accounting for both the closures and opening of grounds to fishing, the Amendment decreased the size of geographic fishing closures relative to the status quo. See ECF No. 25, Attach. 1 (Pl. Mot.) at 3.

         With the Council's task complete, and following the statutorily prescribed route to approval, the Habitat Amendment moved upstream to the Service. As required by law, the Agency immediately put out the proposed Amendment in the Federal Register for comment. See 82 Fed. Reg. at 46750. After reviewing the comments and analyzing the Amendment for its consistency with applicable statutes, the Service approved the portions of the Amendment that managed fisheries in the Gulf of Maine. See ECF No. 1 (Compl.), Attach. 1 (Record of Decision) at 2. Unrelated to this action, it disapproved two portions of the Amendment in the other areas within the Council's jurisdiction. Id It then promulgated a final rule putting the approved portions of the Amendment into effect. See 83 Fed. Reg. at 15240.

         CLF takes issue with this final approval. It believes that the Service's endorsement of the measures in the Gulf of Maine amounts to a dereliction of its conservation duties. Specifically, Plaintiff thinks that the Agency was wrong to conclude that the measures adopted comply with the MSA's directive to protect essential fish habitat. It also believes that the range of alternatives analyzed by the Council falls short of NEPA's procedural demands. Both parties have now filed Motions for Summary Judgment and presented the Court with a voluminous administrative record. Having reviewed this record, the Court is primed to make its decision.

         II. Legal Standard

         Challenges under both the MSA and NEPA proceed under the Administrative Procedure Act's familiar “arbitrary and capricious” standard of review. See 16 U.S.C. § 1855(f)(1); 5 U.S.C. § 706(2)(A). Because of the limited role federal courts play in reviewing such administrative decisions, the typical Federal Rule 56 summary-judgment standard does not apply to the parties' dueling Motions. See Sierra Club v. Mainella, 459 F.Supp.2d 76, 89-90 (D.D.C. 2006). Instead, in APA and MSA cases, “the function of the district court is to determine whether or not . . . the evidence in the administrative record permitted the agency to make the decision it did.” Id (internal citations omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and is otherwise consistent with the APA standard of review. See Bloch v. Powell 227 F.Supp.2d 25, 31 (D.D.C. 2002) (citing Richards v. INS, 554 F.2d 1173, 1177 (D.C. Cir. 1977)).

         The APA requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under this “narrow” standard of review - which appropriately encourages courts to defer to the agency's expertise, see Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) - an agency is required to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (internal quotation marks omitted). In other words, courts “have held it an abuse of discretion for [an agency] to act if there is no evidence to support the decision or if the decision was based on an improper understanding of the law.” Kazarian v. U.S. Citizenship and Immigration Services, 596 F.3d 1115, 1118 (9th Cir. 2010). Put another way, the Court's role is only to “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Am. Oceans Campaign, 183 F.Supp.2d at 4 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

         It is not enough, then, that the court would have come to a different conclusion from the agency. See Oceana, 24 F.Supp.3d at 58 (citing Steel Mfrs. Ass'n v. EPA, 27 F.3d 642, 646 (D.C. Cir. 1994). The reviewing court “does not substitute its own judgment for that of the agency, ” id, nor does it “disturb the decision of an agency that has examine[d] the relevant data and articulate[d] . . . a rational connection between the facts found and the choice made.” Ams. for Safe Access v. DEA, 706 F.3d 438, 449 (D.C. Cir. 2013) (internal quotation marks and citation omitted). A decision that is not fully explained, moreover, may be upheld “if the agency's path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974). It is only these “certain minimal standards of rationality” to which a reviewing court holds an agency. See Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA, 686 F.3d 803, 810 (D.C. Cir. 2012) (citing Ethyl Corp. v. EPA, 541 F.2d 1, 36-37 (D.C. Cir. 1976) (en banc)).

         In cases involving expert scientific judgment, courts employ a particularly high level of deference. When examining an agency's “predictions, within its area of special expertise, at the frontiers of science, ” the “reviewing court must generally be at its most deferential.” Balt. Gas & Elec. Co. v. NRDC, Inc, 462 U.S. 87, 103 (1983). In addition, courts pay agencies “an extreme degree of deference” when decisions “involve complex judgments about sampling methodology and data analysis that are within the agency's technical expertise.” Kennecott Greens Creek Mining Co. v. Mine Safety & Health Admin., 476 F.3d 946, 956 (D.C. Cir. 2007) (internal quotation marks and alterations omitted); see also Int'l Bhd. of Teamsters v. U.S. Dept. of Transp., 724 F.3d 206, 216 (D.C. Cir. 2013) (“[I]n light of the degree of deference we give to the agency's statistical methodology, we cannot conclude that the program will yield invalid findings.”). In other words, when an agency talks scientific data, courts listen. As long as the ultimate decision is reasonable and reasonably explained, that decision will stand.

         III. Analysis

         At bottom, this case is about whether the Council went overboard in weighing economic objectives against conservation goals. Two federal statutes - the MSA and NEPA - serve as the bedrock of Plaintiff s challenge, although the APA provides the avenue for judicial review. See ECF No. 17 (Am. Compl.), ¶¶ 69-129; 16 U.S.C. § 1855(f)(1). The Court starts with the MSA issues and ends with a shorter analysis of those under NEPA.

         A. MSA Claim

         As noted, the Court embarks on its journey with Plaintiffs MSA claim. Getting a handle on this Act, however, is no mere day sail. A fair amount of rigging therefore precedes the full airing of CLF's challenge.

         1. Threshold Issues

         In order to set up the analytical framework that guides its inquiry, the Court first wades into the parties' disagreement about what restrictions the statute - or, more precisely, one provision of the statute - places on the Agency's actions in developing conservation measures. It next offers a few words about the nature of judicial review of an agency decision rendered subject to this standard.

         a. Meaning of MSA's EFH Provision

         As explained earlier, amendments to FMPs must comply with a plethora of statutory requirements. One such provision plays a starring role here. Unlike other requirements, which target the commercial and recreational catching of fish directly, this one aims at protecting the critical habitat of each managed species of fish. Id. § 1853(a)(7). The Council must first identify these “essential fish habitats” (EFH), which the MSA defines as the “waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity.” Id § 1802(10). Crucially for this case, once these habitats are identified, FMPs must “minimize to the extent practicable adverse effects on such habitat caused by fishing.” Id § 1853(a)(7). (For ease of reference, the Court will refer to this statutory language as the “EFH provision.”) Complying with this latter mandate was the Council's core objective in initiating the Habitat Amendment. See 76 Fed. Reg. at 35408-09. CLF's contention is that it fell short. Much turns, therefore, on the precise meaning of this command. It is with this issue of statutory interpretation that the Court thus starts.

         Agreement evident in the parties' briefs sets the bounds of this dispute. They are notably on the same page that the “practicable” language permits, or perhaps even requires, the Council to weigh social and economic harms to fishers against any conservation value. See Pl. Mot. at 27; Def. Opp. & Mot. at 16; see also Pl. Opp. & Reply at 3 (“‘Practicable' implicitly requires that NMFS not focus on the EFH ecological benefits exclusively but must also weigh them against socio-economic factors.”). The parties also agree that the Council must harmonize the ten national standards in any action, which requires it to balance multiple objectives. See Pl. Mot. at 27; Pl. Opp. & Reply at 3; Def. Opp. & Mot. at 17. Where they disagree, however, is in the relative priority assigned to these goals.

         CLF contends that, as a categorical matter, conservation objectives take priority over economic considerations. See Pl. Mot. at 28, 30. This interpretation, it says, follows from the “plain meaning” of the statute. Id. at 27. Only when two proposed actions have similar conservation goals can the Council turn to economic considerations. Id. at 28, 30. And even then, only an “extreme economic hardship” justifies diverging from a more conservation-friendly alternative. See Pl. Opp. & Reply at 6, 8.

         Not quite, retorts the Service. It sees the balancing as more flexible. Under its approach, the Council is entrusted with “conduct[ing] a thorough consideration of complex factors representing a broad array of interests with the goal of achieving the greatest benefit to the nation from each managed fishery.” Def. Opp. & Mot. at 21. Unlike CLF, the Service does not think that the Council is required to “prioritize alternatives based solely on conservation value.” Id. at 22. It goes so far as to say that “[n]othing . . . require[s] the Council, where there were multiple alternatives for each sub-region that were potentially practicable, to choose the one with the highest conservation value.” ECF No. 32 (Def Reply) at 8. Herein lies the rub.

         The Government's view advanced in its brief, however, is only a litigation position. Although the Service has promulgated a regulation that expands on the meaning of the statutory provision at issue, see 50 C.F.R. § 600.815(a)(2)(ii)-(iii), that regulation does not answer directly the operative issue here: the statute's relative weighing of conservation and economic considerations. Lacking any on-point agency interpretation capable of warranting Chevron deference, the Court's statutory interpretation here proceeds de novo. See Menkes v. U.S. Dep't of Homeland Sec, 637 F.3d 319, 345 (D.C. Cir. 2011) (noting that “Chevron deference . . . does not apply to an agency's litigation position”).

         The Court nonetheless largely agrees with the Government that the statutory scheme does not impose the rigid prioritization urged by Plaintiff. Although it understands why reading the requirement to “minimize . . . the adverse effects of fishing” in a vacuum would yield CLF's interpretation, resort to the full statute dispels this hierarchy. That is because, as the parties acknowledge, in any FMP or amendment to an FMP, this is not the only requirement with which a Council must comply. The ten national standards also compete for attention, many of which are similar in structure to the provision at issue here. Three, for instance, command the Council to “minimize” something. See 16 U.S.C. § 1851(a)(7)-(9). Six of the ten impose some sort of requirement “to the degree practicable” or “where practicable.” Id. § 1851(a)(3), (5), (7)-(10). To comply with the national standards and the requirement here, therefore, an FMP - to the degree or where “practicable” - must “minimize” all of the following: the adverse effects of fishing on habitat, the economic impacts on fishing communities, costs and duplication, and bycatch and the mortality of bycatch. It must also, “where practicable, consider efficiency in the utilization of fishery resources, ” although the MSA cautions that “no such measure shall have economic allocation as its sole purpose.” Id § 1851(a)(5). This is not the first court in this district to recognize that several of these statutory goals stand in some tension. See Oceana, 24 F.Supp.3d at 68 (noting “somewhat conflicting nature” of national standards and stating that they “require the agency to balance several competing considerations in developing FMPs”).

         The upshot of this statutory structure is that Congress did not intend any of these specified goals - i.e., the ones limited to actions that are “practicable” - to take priority over the others. That includes CLF's focus on the habitat-conservation goal. Rather, the legislature wrote the essential-fish-habitat provision “to allow for the application of agency expertise and discretion in determining how best to manage fishery resources.” Conservation Law Found., 37 F.Supp.3d at 251 (citing Conservation Law Found. v. Evans, 360 F.3d 21, 28 (1st Cir. 2004)); see also Oceana, Inc. v. Evans, 2005 WL 555416, at *35 (D.D.C. Mar. 9 2005) (same); Oceana, 384 F.Supp.2d at 242 (same). The provision does not “require Councils to do everything they can to protect essential fish habitat.” Conservation Law Found., 37 F.Supp.3d at 251. To borrow an apt description from another court, a “singular focus on alternatives that close fishing grounds in order to protect EFH ignores [the MSA's] statutory mandates and effectively reads ‘practicable' out of the MSA.” Oceana, 2005 WL 555416, at *35. Congress's inclusion of the term “practicable” is thus critical; it is the means by which it “delegated to the agency the discretion to weigh the relevant factors” embodied in the MSA's competing objectives. Oceana, 24 F.Supp.3d at 67. The Council is no doubt required to consider the impact of fishing on essential habitat. It need not, however, exalt this objective over all others.

         As CLF points out, there is language in one D.C. Circuit opinion that appears to suggest otherwise. In NRDC, the circuit stated that “the Service must give priority to conservation measures” and that “[i]t is only when two different plans achieve similar conservation measures that the Service takes into consideration adverse economic impacts.” NRDC, Inc. v. Daley, 209 F.3d 747, 753 (D.C. Cir. 2000). Those statements, however, must be understood in context. In NRDC, the court considered the interplay of two national standards regarding a plan's proposed imposition of a catch limit on certain species of fish. National standard one provides that the Agency “shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery.” 16 U.S.C. § 1851(a)(1). In setting catch limits to implement this conservation goal, the Service - consistent with national standard eight - must also, “to the extent practicable, minimize adverse economic impacts on [fishing] communities.” Id. § 1851 (a)(8). At issue in NRDC was whether there was a conflict between these two directives. See 209 F.3d at 753; see also 16 U.S.C. § 1851(a)(1), (8). The language in the circuit's holding quoted above was its answer to this question - i.e., because conservation measures take priority, there is no tension.

         A glance at the statute's language confirms the logic of that court's view in this context. National standard one is an unqualified directive: the Service “shall prevent overfishing while achieving . . . optimum yield.” 16 U.S.C. § 1851(a)(1). National standard eight, conversely, is qualified both by its introductory verb - “minimize, ” instead of “prevent” - and the limitation to only further this goal “to the extent practicable.” Id § 1851(a)(8). Given this language, it makes perfect sense that the conservation goal embodied by the directive to prevent overfishing be given priority over the goal of minimizing adverse impacts.

         Unlike NRDC, the challenge in this case is not to the Service's prescribed catch limits that attempt to “maximize the harvest of a single class of fish over its entire life span” - i.e., achieve optimum yield. See NRDC, 209 F.3d at 749. At issue here, rather, is another type of conservation measure: habitat protection. CLF invites this Court to extend the circuit's holding in NRDC from the overfishing context to habitat-protection measures. See Pl. Mot. at 28.

         The Court declines the invitation to read such a hierarchy into the Act's essential-fish-habitat provision. Applying the logic underlying NRDC to statutory text here proves central to this conclusion. Unlike the directive to “prevent overfishing, ” the EFH provision is qualified by both its verb (“minimize”) and the limitation to actions that are “practicable.” The structure of this mandate is thus functionally identical to much of national standard eight, which is the precise provision that the court in NRDC held was subordinate to a more explicit directive. For many of the reasons already explained, the inclusion of the word “practicable” is “crucial.” Conservation Law Found., 37 F.Supp.3d at 251. So while the potential tension in NRDC lay between an explicit directive and an effort to “minimize” something to the extent “practicable, ” that is not the case here. Rather, the weighing of competing objectives lies within an objective to “minimize to the extent practicable.” This language grants the Service broad discretion to weigh relevant factors, rather than imposing any rigid hierarchy among them. NRDC s statement limiting any consideration of economic impacts to situations in which “two different plans achieve similar conservation measures, ” 209 F.3d at 753, simply does not make sense in the context of the EFH provision.

         To be sure, CLF appears to retreat from this position in its Reply brief. It contends that the Council need not adopt any restriction that imposes an “extreme economic hardship.” Pl. Opp. & Reply at 6, 8, 14. But whence CLF finds this limit is unclear. The language does not exist in the statute or in any of the regulations governing EFH. And, absent a hook in the law, this Court sees no reason to adopt it in place of the more flexible balancing that flows from the statutory structure.

         Finally, before moving on, the Court notes that its conclusion here also does away with another variant of CLF's challenge. Plaintiff asserts throughout its briefs that the Council and the Service both misunderstood the MSA's requirements. It contends that both the formal goals and objectives created by the Council to guide its action, as well as several statements sprinkled throughout the record, demonstrate this misunderstanding. See, e.g., Pl. Mot. at 30-32; Pl. Opp. & Reply at 5. Certainly, if that were true, it could be grounds to condemn the Service's Amendment: an agency's decision “based on an improper understanding of the law” can render it arbitrary or capricious. See Kazarian, 596 F.3d at 1118. But that is not what happened here. Rather, as the prior discussion shows, it appears that CLF is the party unclear on the MSA's directive. Because Plaintiffs contention here rests primarily on a view of the law with which the Court disagrees, its conclusion falls too. The Court has analyzed the Council's goals and objectives - some of which explicitly relate to the Amendment's groundfish, rather than habitat-protection purposes, see 82 Fed. Reg. at 46750 - as well as the other record statements to which Plaintiff points. It has little trouble concluding that these statements are consistent with the MSA, as interpreted above.

         b. Nature of Judicial Review

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The preceding section mapped the contours of the MSA&#39;s directive to protect essential habitat. With that task complete, the Court&#39;s exercise in statutory interpretation also concludes; what remains is governed by arbitrary-or-capricious review. See Judulang v. Holder,565 U.S. 42, 53 n.7 (2011) (noting that &ldquo;arbitrary or capricious review under the APA, &rdquo; rather that Chevron, is &ldquo;the more apt analytical framework&rdquo; when agency&#39;s decision &ldquo;is not an interpretation of any statutory language&rdquo;). That is because CLF&#39;s extant challenges to the Amendment concern the manner in which the Service implemented an established, but inherently discretionary, directive. This sort of dispute is &ldquo;a garden variety APA arbitrary and capricious claim, and [the Court] should treat it as such.&rdquo; Chamber of Commerce of U.S. v. FEC, 76 F.3d 1234, 1235-36 (D.C. Cir. 1996). For this reason, the “vast majority” of courts in this district have analyzed these kinds of ...


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